August 7, 2012

Mr. Martin M. Strahan

Assistant District Attorney

Johnson and Somervell Counties

204 South Buffalo Avenue, Suite 409

Cleburne, Texas 76033

OR2012-12336

Dear Mr. Strahan:

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# 461659.

The Johnson County Sheriff's Office (the "sheriff's office") received a request for information related to the defendant in cause number F45749. You claim that the requested information is excepted from disclosure under sections 552.103, 552.108, and 552.130 of the Government Code. ⁽¹⁾ We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the submitted information contains a fingerprint of the requestor's client. Access to fingerprint information is governed by sections 560.001, 560.002, and 560.003 of the Government Code. Section 560.001 provides in part that "[i]n this chapter . . . '[b]iometric identifier' means a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry." Gov't Code § 560.001(1). Section 560.003 provides that "[a] biometric identifier in the possession of a governmental body is exempt from disclosure under [the Act]." Id. § 560.003. Section 560.002 provides, however, that "[a] governmental body that possesses a biometric identifier of an individual . . . may not sell, lease, or otherwise disclose the biometric identifier to another person unless . . . the individual consents to the disclosure[.]" Id. § 560.002(1)(A). Thus, section 560.002(1)(A) of the Government Code gives an individual or his authorized representative a right of access to his own fingerprint information. Thus, the requestor has a right of access to her client's fingerprint, which we have marked, under section 560.002(1)(A). Although you assert this information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code, statutes governing the release of specific information prevail over the general exceptions to disclosure found in the Act. See Attorney General Opinion DM-146 at 3 (1992); see also Open Records Decision Nos. 613 at 4 (1993) (exceptions to Act cannot impinge on statutory right of access to information), 451 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under the Act). Therefore, the sheriff's office must release the marked fingerprint to this requestor under section 560.002 of the Government Code.

Section 552.108 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 state the submitted information is related to a pending criminal prosecution. Based on your representation, we find release of the remaining information 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 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 the remaining information.

We note, however, section 552.108 does not except from disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). Section 552.108(c) refers to basic "front-page" information held to be public in Houston Chronicle Publishing Company v. City of Houston, 531 S.W.2d 177 (Tex. 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 (1976) (summarizing types of information considered to be basic information). Thus, with the exception of basic information, the sheriff's office may withhold the remaining submitted information under section 552.108(a)(1) of the Government Code. ⁽²⁾

In summary, the sheriff's office must release the marked fingerprint to this requestor under section 560.002 of the Government Code. With the exception of basic information, the sheriff's office may withhold the remaining submitted information under section 552.108(a)(1) 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,

Cindy Nettles

Assistant Attorney General

Open Records Division

CN/dls

Ref: ID# 461659

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. As you also initially raised sections 552.101and 552.111 of the Government Code, but have submitted no arguments in support of the applicability of those exceptions, we assume you no longer urge those exceptions. See Gov't Code § 552.301(e)(1)(A) (governmental body must provide written comments in support of applicability of each exception it claims).

2. As our ruling is dispositive we do not address your remaining arguments against disclosure except to note basic information held to be public in Houston Chronicle is generally not excepted from public disclosure under section 552.103 of the Government Code. See Open Records Decision No. 591 (1991). We also note basic information does not include motor vehicle information subject to section 552.130 of the Government Code. See ORD 127.

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