 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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July 19, 2012 Ms. Linda Pemberton Paralegal City of Killeen P.O. Box 1329 Killeen, Texas 76540-1329 OR2012-11240 Dear Ms. Pemberton: 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# 459410 (W008018). The Killeen Police Department (the "department") received a request for records pertaining to two named individuals, including report number 10-013649. You state the department has released some information to the requestor. You claim the submitted 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 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. Section 552.101 encompasses the doctrine of common-law privacy, which 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. 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). Moreover, we find a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. We note, however, information that refers to an individual solely as a victim, witness, or involved person does not implicate the privacy interest of the individual and may not be withheld under section 552.101 on that basis. The present request, in part, requires the department to compile unspecified law enforcement records concerning the named individuals, thus implicating the named individuals' rights to privacy. However, we find the part of the request that seeks a specified report does not implicate the named individuals' privacy interests. You submitted report number 10-013649, which was specifically requested and therefore may not be withheld as part of a criminal history compilation. However, to the extent the department maintains law enforcement records other than the specified report depicting the named individuals as suspects, arrestees, or criminal defendants, the department must withhold any such information under section 552.101 of the Government Code in conjunction with common-law privacy. We note in addition to the specified report, you have also submitted information that does not depict the named individuals as suspects, arrestees, or criminal defendants. Thus, this information is not part of a criminal history compilation and may not be withheld under section 552.101 in conjunction with common-law privacy. Accordingly, we address your remaining argument against the release of this information. 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). Section 552.108(a)(2) is applicable only if the information at issue relates to a concluded criminal case that did not result in a conviction or a deferred adjudication. A governmental body that claims an exception to disclosure under section 552.108 must reasonably explain how and why this exception is applicable to the information the governmental body seeks to withhold. See id. § 552.301(e)(1)(A). You assert report numbers 08-010240 and 09-015965 relate to criminal investigations that did not result in convictions or deferred adjudication. Therefore, we agree section 552.108(a)(2) is applicable to these reports. As you acknowledge, section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Id. § 552.108(c). Such basic information refers to the information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). See 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, which you state has been released, the department may withhold report numbers 08-010240 and 09-015965 under section 552.108(a)(2). We note a portion of report number 10-013649 is subject to section 552.130 of the Government Code. (2) Section 552.130 provides information relating to a motor vehicle operator's or driver's license or permit issued by an agency of this state or another state or country is excepted from public release. Gov't Code § 552.130(a)(1). We find the department must withhold the driver's license number we have marked under section 552.130. In summary, to the extent the department maintains law enforcement records depicting the named individuals as suspects, arrestees, or criminal defendants, the department 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 department may withhold report numbers 08-010240 and 09-015965 under section 552.108(a)(2) of the Government Code. The department must withhold the driver's license number we have marked under section 552.130 of the Government Code. The remaining information must be released. (3) 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/som Ref: ID# 459410 Enc. Submitted documents c: Requestor (w/o enclosures)
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.
2. 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).
3. We note report number 10-013649 contains the social security number of a living individual.
Section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social
security number from public release without the necessity of requesting a decision from this office under the
Act. Gov't Code § 552.147(b).
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |