June 1, 2012

Ms. Leila Feldman

General Counsel

Fort Bend Independent School District

16431 Lexington Boulevard

Sugar Land, Texas 77479

OR2012-08426

Dear Ms. Feldman:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 455256.

The Fort Bend Independent School District (the "district") received a request for information related to a specified type of incident involving a district coach. You claim the submitted district police department incident reports are information excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.108(a)(1) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). A governmental body must reasonably explain how and why section 552.108 is applicable to the information at issue. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You indicate the information in exhibit B, consisting of information related to case numbers 201100479 and 201100627, is excepted from disclosure under subsection 552.108(a)(1) and deals with the detection and investigation of crime. You state case number 201100479 is an open case and case number 201100627 is an inactive case. Based on these representations and our review, we find release of exhibit B would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975) (court delineates law enforcement interests that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Therefore, section 552.108(a)(1) is applicable to exhibit B.

However, section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Id. § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 186-88; see also Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Basic information includes, among other things, an identification and description of the complainant and a detailed description of the offense, but does not include identifying information of a victim, unless the victim is also the complainant. See ORD 127 at 3-4. In this instance, we note the victims are not the complainants. With the exception of basic information, which must be released, the district may withhold exhibit B under section 552.108(a)(1)of the Government Code.

Section 552.108(a)(2) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication." Gov't Code § 552.108(a)(2). A governmental body claiming section 552.108(a)(2) must demonstrate the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. See id. § 552.301(e)(1)(A). You raise section 552.108(a)(2) as an exception to disclosure of exhibit C. You state the "specific case is closed, but has not resulted in a conviction or deferred adjudication[.]" You also state release of the information could compromise the investigation and prosecution of a crime. We find you have provided contradictory representations regarding whether exhibit C relates to a case that has concluded in a final result other than conviction or deferred adjudication. Because of these contradictory representations, we find you have failed to demonstrate the applicability of section 552.108(a)(2) to exhibit C. Accordingly, the district may not withhold exhibit C under section 552.108(a)(2) of the Government Code.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. ⁽¹⁾ This exception encompasses information protected by other statutes, such as section 21.12 of the Penal Code. Section 21.12(a) provides a public or private school employee commits an offense if the employee engages in "sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works[.]" Penal Code § 21.12(a)(1). Further, section 21.12(d) provides "[t]he name of a person who is enrolled in a public or private primary or secondary school and involved in an improper relationship with an educator as provided by Subsection (a) may not be released to the public and is not public information under [the Act]." Id. § 21.12(d). Exhibit C concerns an allegation of an improper relationship between an educator and a student. The student victim's name, which we have marked, is confidential under section 21.12(d) and must be withheld under section 552.101 of the Government Code.

Section 552.101 also encompasses common-law privacy, which protects information that (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. Id. at 681-82. The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. Upon review, we find the information we have marked in exhibit C is highly intimate or embarrassing and of no legitimate public concern. Therefore, the district must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy.

We note exhibit C contains several driver's license numbers. Section 552.130 of the Government Code provides that information related to a motor vehicle operator's license or driver's license issued by a Texas agency, or an agency of another state or country, is excepted from public release. Gov't Code § 552.130(a)(1). The district must withhold the driver's license numbers we have marked in exhibit C under section 552.130 of the Government Code.

In summary, with the exception of basic information the district may withhold exhibit B under section 552.108(a)(1) of the Government Code. The district must withhold the information we have marked in exhibit C under: (1) section 552.101 of the Government Code in conjunction with section 21.12(d) of the Penal Code; (2) section 552.101 of the Government Code in conjunction with common-law privacy; and (3) section 552.130 of the Government Code. The remaining information must be released.

This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free at (888) 672-6787.

Sincerely,

Jessica Marsh

Assistant Attorney General

Open Records Division

JM/bs

Ref: ID# 455256

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer