June 18, 2012

Mr. David C. Schulze

Interim General Counsel

Dallas Area Rapid Transit

P.O. Box 660163

Dallas, Texas 75266-0163

OR2012-09378

Dear Mr. Schulze:

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# 456439 (DART ORR 8930).

Dallas Area Rapid Transit ("DART") received a request for all subpoenas from the U.S. Department of Justice from June 2010 to the present and a list of vendors for all bond and refinancing matters from 2003 to the present. You state DART released some information to the requestor. You claim the remaining requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. ⁽¹⁾

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. This section encompasses information protected by other statutes. You contend the submitted subpoenas are excepted from disclosure under section 552.101 in conjunction with rule 6 of the Federal Rules of Criminal Procedure. Rule 6(e) provides in pertinent part:

(2) Secrecy.

(A) No obligation of secrecy may be imposed on any person except in accordance with Rule (6)(e)(2)(B).

(B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of a recording device;

(v) a person who transcribes recorded testimony;

(vi) an attorney for the government; or

(vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).

(3) Exceptions.

(A) Disclosure of a grand-jury matter-other than the grand jury's deliberations or any grand jury's vote-made be made to:

. . .

(ii) any government personnel-including those of a state, state subdivision, Indian tribe, or foreign government-that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law[.]

. . .

(6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.

Fed. R. Crim Pro. 6(e)(2), (3)(A)(ii), (6). Rule 6(e)(2), in its prescription of secrecy, refers to the previous subsection, which provides that "all proceedings must be recorded by a court reporter or by a suitable recording device." Id. 6(e)(1). Although you contend the submitted federal subpoenas are confidential pursuant to rule 6, you have not shown DART or any DART employee received the subpoenas as a result of being among the persons subject to the secrecy rule. See id. 6(e)(2), (3). Accordingly, we must conclude the submitted subpoenas did not come into the possession of DART or any of its officials by operation of, or statutory exception to, the secrecy rule, but because DART was served with the subpoenas. See id. Moreover, section 6(e)(2) states that no obligation of secrecy may be imposed on any person except in accordance with this rule. See id. 6(e)(2). Accordingly, we cannot conclude that rule 6 of the Federal Rules of Criminal Procedure makes the subpoenas confidential.

You also assert the submitted subpoenas are excepted from disclosure under section 552.101 of the Government Code in conjunction with article 20.02 of the Code of Criminal Procedure. Article 20.02(a) provides "[t]he proceedings of the grand jury shall be secret." Crim. Proc. Code art. 20.02(a). Article 20.02, however, does not define "proceedings" for purposes of subsection (a). Therefore, we have reviewed case law for guidance and found that Texas courts have not often addressed the confidentiality of grand jury subpoenas under article 20.02. Nevertheless, the court in In re Reed addressed the issue of what constitutes "proceedings" for purposes of article 20.02(a) and stated that, although the court was aware of the policy goals behind grand jury secrecy, the trial court did not err in determining the grand jury summonses at issue were not proceedings under article 20.02. See In re Reed, 227 S.W.3d 273, 276 (Tex. App.--San Antonio 2007, orig. proceeding). The court further stated that the term "proceedings" could "reasonably be understood as encompassing matters that take place before the grand jury, such as witness testimony and deliberations." Id. at 276. The court also discussed that, unlike federal law, article 20.02 does not expressly make subpoenas confidential. See id.; Fed. R. Crim. P. 6(e)(6).

Subsequent to the ruling in Reed, the 80th Legislature, modeling federal law, added subsection (h) to article 20.02 to address grand jury subpoenas. See Crim. Proc. Code art. 20.02; see also Fed. R. Crim. P. 6(e)(6) ("Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury."). Article 20.02(h) states that "[a] subpoena or summons relating to a grand jury proceeding or investigation must be kept secret to the extent and for as long as necessary to prevent the unauthorized disclosure of a matter before the grand jury." Crim. Proc. Code art. 20.02(h). This provision, however, does not define or explain what factors constitute "necessary to prevent the unauthorized disclosure of a matter before the grand jury." Id. Because article 20.02(h) is modeled on federal law, we reviewed federal case law for guidance on a definition or explanation of the factors that would constitute "necessary to prevent the unauthorized disclosure of a matter before the grand jury" for the purposes of keeping grand jury subpoenas secret. Our review of federal case law revealed that federal courts have ruled inconsistently on the issue of whether or not grand jury subpoenas must be kept secret. Fed. R. Crim. P. 6(e)(6) advisory committee's note (stating federal case law has not consistently stated whether or not subpoenas are protected by rule 6(e)). Furthermore, even if we considered article 20.02 to be a confidentiality provision, information withheld under this statute would only be secret "for as long as necessary to prevent the unauthorized disclosure of a matter before the grand jury." Id.

You have not submitted any arguments explaining how the matters upon which the submitted subpoenas are based are still "before the grand jury" to warrant keeping the information secret. Therefore, upon review of article 20.02 and related case law, it is not apparent, and you have not otherwise explained, how this provision makes any of the submitted information confidential. See Open Records Decision No. 478 (1987) (as general rule, statutory confidentiality requires express language making information confidential). Consequently, DART may not withhold any of the submitted information under section 552.101 of the Government Code in conjunction with article 20.02 of the Code of Criminal Procedure.

Section 552.101 of the Government Code also encompasses the doctrines of common-law privacy and constitutional privacy. The doctrine of common-law privacy protects information if it (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. 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 established. Id. at 681-82. The type of information considered intimate or 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. We note there is a legitimate public interest in the details of a criminal investigation. See id. at 685 (whether matter is of legitimate interest to public can be considered only in context of each particular case); cf. Open Records Decision No. 409 at 2 (1984) (identity of burglary victim not protected by common-law privacy); see also Lowe v. Hearst Communications, Inc., 487 F.3d 246, 250 (5th Cir. 2007) (noting a "legitimate public interest in facts tending to support an allegation of criminal activity" (citing Cinel v. Connick, 15 F.3d 1338, 1345-46 (1994))).

Constitutional privacy consists of two inter-related types of privacy: (1) the right to make certain kinds of decisions independently and (2) an individual's interest in avoiding disclosure of personal matters. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Open Records Decision Nos. 600 at 3-5 (1992), 478 at 4 (1987), 455 at 3-7 (1987). The first type protects an individual's autonomy within "zones of privacy," which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. ORD 455 at 4. The second type of constitutional privacy requires a balancing between the individual's privacy interests and the public's need to know information of public concern. Id. at 7. The scope of information protected by constitutional privacy is narrower than that under common-law privacy; constitutional privacy under section 552.101 is reserved for "the most intimate aspects of human affairs." Id. at 5 (internal quotations omitted) (quoting Ramie v. City of Hedwig Village, Tex., 765 F.2d 490 (5th Cir. 1985)).

Upon review, we find no portion of the submitted information is highly intimate or embarrassing information of no legitimate public concern. Accordingly, DART may not withhold any of the submitted information under section 552.101 of the Government Code in conjunction with common-law privacy. We further find none of the submitted information falls within one of the protected "zones" of privacy, and no individual's interest outweighs the public's need to know information of a public concern. Accordingly, DART may not withhold the submitted information under section 552.101 of the Government Code in conjunction with constitutional privacy. As you raise no other exceptions against disclosure of the submitted information, it 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,

Ana Carolina Vieira

Assistant Attorney General

Open Records Division

ACV/ag

Ref: ID# 456439

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent those records contain substantially different types of information than those submitted to this office.

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