July 12, 2012

Ms. Michelle T. Rangel

Assistant County Attorney

Fort Bend County

William B. Travis Building

301 Jackson Street, Suite 728

Richmond, Texas 77469

OR2012-10823

Dear Ms. Rangel:

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# 458605.

The Fort Bend County Sheriff's Office (the "sheriff's office") received four requests from the same requestor for information pertaining to a named individual and a specified address during four specified time periods, including information pertaining to a specified incident that occurred on a specified date. You claim the requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

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 the doctrine of 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. 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. A compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). Furthermore, we find that a compilation of a private citizen's criminal history is generally not of legitimate concern to the public.

The present request, in part, seeks all information pertaining to a named individual. Thus, this portion of the request requires the sheriff's office to compile unspecified law enforcement records concerning the named individual, thus implicating the named individual's right to privacy. However, we find the part of the request seeking information pertaining to a specified incident does not implicate the named individual's privacy interests. You submitted incident report number 11-10448, which is responsive this part of the request. Because incident report number 11-10448 was specifically requested it may not be withheld under section 552.101 as part of a criminal history compilation. However, to the extent the sheriff's office maintains law enforcement records other than incident report number 11-10448 depicting the named individual as a suspect, arrestee, or criminal defendant, the sheriff's office must withhold any such information under section 552.101 of the Government Code in conjunction with common-law privacy. We note the sheriff's office submitted incident report numbers 10-32315, 11-31368, and 12-6523, which do not depict the named individual as a suspect, arrestee, or a criminal defendant. These reports do not constitute a criminal history compilation protected by common-law privacy and may not be withheld on that basis under section 552.101. However, we will address your remaining arguments for this information and incident report number 11-10448.

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 claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state incident report numbers 10-32315, 11-10448, and 11-31368 relate to pending criminal investigations. Based upon these representations and our review, we conclude release of the information at issue 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). Accordingly, we conclude section 552.108(a)(1) of the Government Code is generally applicable to incident report numbers 10-32315, 11-10448, and 11-31368.

Section 552.108(a)(2) of the Government Code excepts from disclosure information concerning an investigation that concluded in a result other than 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) (governmental body must provide comments explaining why exceptions raised should apply to information requested). You state incident report number 12-6523 relates to a concluded case that did not result in a conviction or deferred adjudication. Based on your representation and our review, we conclude section 552.108(a)(2) is generally applicable to incident report number 12-6523.

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; Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). Thus, with the exception of basic information, the sheriff's office may withhold incident report numbers 10-32315, 11-10448, and 11-31368 under section 552.108(a)(1) of the Government Code and incident report number 12-6523 under section 552.108(a)(2) of the Government Code. ⁽¹⁾

In summary, to the extent the sheriff's office maintains law enforcement records other than incident report number 11-10448 depicting the named individual as a suspect, arrestee, or criminal defendant, the sheriff's office must withhold any such information under section 552.101 of the Government Code in conjunction with common-law privacy. With the exception of basic information, the sheriff's office may withhold incident report numbers 10-32315, 11-10448, and 11-31368 under section 552.108(a)(1) of the Government Code and incident report number 12-6523 under section 552.108(a)(2) of the Government Code.

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,

Jennifer Luttrall

Assistant Attorney General

Open Records Division

JL/som

Ref: ID# 458605

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. As our ruling is dispositive, we do not address your remaining argument against disclosure of incident report numbers 10-32315, 11-10448, 11-31368, and 12-6523.

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