September 26, 2012

Mr. B. Chase Griffith

Counsel for the Town of Little Elm

Brown & Hofmeister, L.L.P.

740 East Campbell Road, Suite 800

Richardson, Texas 75081

OR2012-15297

Dear Mr. Griffith:

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# 466718.

The Little Elm Police Department (the "department"), which you represent, received four requests from two requestors for information pertaining to a specified address and a named individual for a specified time period and all records pertaining to another named individual. You state the department has released some information to the second 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 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. 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 courthouses 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 a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. We note the first requestor's requests require the department to compile unspecified criminal history records concerning the individual named in the requests, and thus, implicates the named individual's right to privacy. Therefore, to the extent the department maintains law enforcement records depicting the named individual in the first requestor's requests as a suspect, arrestee, or criminal defendant, the department must withhold any such information under section 552.101 in conjunction with common-law privacy.

We further note that you have submitted information that does not depict this named individual as a suspect, arrestee, or criminal defendant. Thus, this information is not part of the named individual's criminal history compilation and may not be withheld under section 552.101 on this basis. Accordingly, we will address your arguments against disclosure of this information.

Section 552.101 of the Government Code also encompasses information that other statutes make confidential. Section 261.201 of the Family Code provides, in relevant part, the following:

(a) [T]he following information is confidential, is not subject to public release under [the Act] and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

. . .

(k) Notwithstanding Subsection (a), an investigating agency, other than the [Texas Department of Family and Protective Services] or the Texas Youth Commission, on request, shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect, or to the child if the child is at least 18 years of age, information concerning the reported abuse or neglect that would otherwise be confidential under this section. The investigating agency shall withhold information under this subsection if the parent, managing conservator, or other legal representative of the child requesting the information is alleged to have committed the abuse or neglect.

Fam. Code § 261.201(a), (k). Upon review, we find the information we have marked was used or developed by the department in an investigation of alleged child abuse or neglect. See id. § 261.001 (defining "abuse" and "neglect" for purposes of chapter 261 of the Family Code); see also id. § 101.003(a) (defining "child" for purposes of chapter 261). Although the second requestor is a parent of the child victim listed in the information at issue, the second requestor is alleged to have committed the alleged child abuse or neglect. Thus, the second requestor does not have a right of access to the information at issue, and the department must withhold this report in its entirety from the second requestor under section 552.101 of the Government Code in conjunction with section 261.201(k) of the Family Code.

We note some of the remaining information contains information protected by common-law privacy. The types of information considered intimate or embarrassing by the Texas Supreme Court in Industrial Foundation include 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. 540 S.W.2d at 683. Generally, only highly intimate information that implicates the privacy of an individual is withheld. However, in certain instances, where it is demonstrated that the requestor knows the identity of the individual involved, as well as the nature of certain incidents, the entire report must be withheld to protect the individual's privacy.

We note one of the first requestor's requests reveals that he knows the nature of the incident to which report 12-0120456 pertains and the identity of the named individual involved. Therefore, withholding only the individual's identity or certain details of the incident from this requestor would not preserve the named individual's common-law right to privacy. Accordingly, to protect the named individual's privacy, the department must withhold report 12-0120456 in its entirety from the first requestor under section 552.101 of the Government Code in conjunction with common-law privacy. Further, we note a portion of the information in report 12-0120523, which we have marked, is highly intimate or embarrassing and of no legitimate public interest. Accordingly, the department must withhold the information we have marked in report 12-0120523 from the first requestor under section 552.101 of the Government Code in conjunction with common-law privacy. However, we find none of the remaining information in report 12-0120523 is highly intimate or embarrassing and not of legitimate public interest. Therefore, none of the remaining information in report 12-0120523 may be withheld under section 552.101 on the basis of common-law privacy.

However, we note the information at issue in reports 12-0120456 and 12-0120523 pertains to the second requestor. Section 552.023 of the Government Code states a person or a person's authorized representative has a special right of access to information that relates to the person and that is protected from disclosure by laws intended to protect the person's privacy interest. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (governmental body may not deny access to whom information relates or person's authorized representative on grounds that information is considered confidential by privacy principles). Thus, in this instance, the second requestor has a special right of access to the information at issue in reports 12-0120456 and 12-0120523, and the department may not withhold it from the second requestor under section 552.101 in conjunction with common-law privacy.

In summary, to the extent the department maintains law enforcement records depicting the named individual in the first requestor's requests as a suspect, arrestee, or criminal defendant, the department must withhold any such information under section 552.101 of the Government Code in conjunction with common-law privacy. The department must withhold the information we have marked from the second requestor under section 552.101 of the Government Code in conjunction with section 261.201(k) of the Family Code. The department must withhold report 12-0120456 in its entirety and the information we have marked in report 12-0120523 from the first requestor under section 552.101 of the Government Code in conjunction with common-law privacy. The department must release the remaining information.

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,

Sean Nottingham

Assistant Attorney General

Open Records Division

SN/bhf

Ref: ID# 466718

Enc. Submitted documents

c: 2 Requestors

(w/o enclosures)

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