October 29, 2012

Mr. Robert Ray

Assistant City Attorney

City of Longview

P.O. Box 1952

Longview, Texas 76506

OR2012-17246

Dear Mr. Ray:

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# 469106.

The Longview Police Department (the "department") received a request for all information pertaining to two named individuals during a specified time period, including a specified incident. You claim the requested information is excepted from disclosure under sections 552.101, 552.130, and 552.147 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses common-law privacy, which protects information that is (1) highly intimate or embarrassing, the publication of which would be highly objectionable to a reasonable person and (2) 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. This office has found 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. United States 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 a compilation of a private citizen's criminal history is generally not of legitimate concern to the public.

The present request seeks all reports pertaining to two named individuals. This request requires the department to compile the named individuals' criminal histories and implicates the right to privacy of each named individual. Therefore, to the extent the department maintains law enforcement records listing either of the named individuals as a suspect, arrestee, or criminal defendant, the department must withhold such information under section 552.101 of the Government Code in conjunction with common-law privacy.

However, information that refers to an individual solely as a victim, witness, or involved person is not a compilation of the individual's criminal history and may not be withheld under section 552.101 on that basis. We note you have submitted information, including information pertaining to the specified incident, that does not list either of the named individuals as a suspect, arrestee, or criminal defendant. This information does not consist of a compilation of the criminal history of either named individual, and it may not be withheld under section 552.101 of the Government Code on that basis. Accordingly, we will address the applicability of other exceptions to disclosure of this information.

Section 552.101 of the Government Code also encompasses information protected by other statutes. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997, are confidential under section 58.007(c) of the Family Code, which reads as follows:

(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapters B, D, and E.

Fam. Code § 58.007(c). For purposes of section 58.007(c), "child" means a person who is ten years of age or older and under seventeen years of age at the time of the reported conduct. See id. § 51.02(2). You argue some of the information at issue is subject to section 58.007(c) of the Family Code. Upon review, we find portions of the information at issue, which we have marked, involve juvenile delinquent conduct that occurred after September 1, 1997. See id. § 51.03 (defining "delinquent conduct" for purposes of Fam. Code § 58.007). It does not appear any of the exceptions in section 58.007 apply. Therefore, the department must withhold the information we marked under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. However, we find you have not demonstrated how any of the remaining information at issue, which does not identify a juvenile suspect or offender, consists of juvenile law enforcement records for purposes of section 58.007(c). Therefore, the department may not withhold any portion of the remaining information under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code.

Section 552.101 of the Government Code also encompasses information made confidential by other statutes. You claim portions of the information at issue are subject to section 771.061 of the Health and Safety Code, which makes confidential "[i]nformation that a service provider of telecommunications service is required to furnish to a governmental entity in providing computerized 9-1-1 service" and "[i]nformation that is contained in an address database maintained by a governmental entity or a third party used in providing computerized 9-1-1 service." Health & Safety Code § 771.061(a). You state portions of the information at issue, which you boxed in red, originated from a 9-1-1 database that is maintained for the department by a third party. You further state the database and the marked information are "used and maintained for the purpose of providing computerized 9-1-1 service." A portion of the information at issue appears to have been provided by a 9-1-1 caller. Any information provided directly by a 9-1-1 caller is not subject to section 771.061, and the department may not withhold any such information under section 552.101 of the Government Code in conjunction with section 771.061 of the Health and Safety Code. Thus, based on your representations, we conclude with the exception of any information provided directly by a 9-1-1 caller, the information you have marked is confidential under section 771.061 and must be withheld under section 552.101 of the Government Code, to the extent such information originated from the department's 9-1-1 address database. See Open Records Decision No. 661 at 1-2 (1999).

You argue some of the remaining information is subject to section 552.101 of the Government Code in conjunction with common-law privacy, which is subject to the two-part test discussed above. See Indus. Found., 540 S.W.2d at 685. 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. Generally, only highly intimate information that implicates the privacy of an individual is withheld. However, in certain instances, where it is demonstrated 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. This office has also found some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 455 (1987) (information pertaining to prescription drugs, specific illnesses, operations and procedures, and physical disabilities protected from disclosure), 422 (1984), 343 (1982). In this instance, you seek to withhold some of the remaining information in its entirety under section 552.101 in conjunction with common-law privacy. However, you have not demonstrated, nor does it otherwise appear, this is a situation in which the entirety of the information at issue must be withheld on the basis of common-law privacy. Accordingly, the department may not withhold the entirety of the information at issue under section 552.101 of the Government Code on that basis. However, upon review, we find portions of the remaining information, which we have marked, are highly intimate or embarrassing and not of legitimate public concern. Thus, the information we have marked must be withheld under section 552.101 of the Government Code in conjunction with common-law privacy. We find you have not demonstrated how any of the remaining information is highly intimate or embarrassing and not of legitimate public concern. Thus, the remaining information may not be withheld under section 552.101 of the Government Code in conjunction with common-law privacy.

Section 552.130 of the Government Code provides information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by an agency of this state or another state or country is excepted from public release. See Gov't Code § 552.130. Accordingly, the department must withhold the motor vehicle record information you have marked under section 552.130 of the Government Code.

Section 552.147(a) of the Government Code excepts the social security number of a living individual from public disclosure. Id. § 552.147. In this instance, the submitted information includes the social security number of the requestor's client's minor child. We note section 552.147 is based on privacy principles. See id. § 552.023(b). Thus, the requestor's client's minor child's social security number may not be withheld from the requestor. Therefore, with the exception of the social security number belonging to the requestor's client's minor child, the department may withhold the social security numbers you have marked under section 552.147 of the Government Code. ⁽¹⁾

In summary, to the extent the department maintains law enforcement records listing either of the named individuals as a suspect, arrestee, or criminal defendant, the department must withhold such information under section 552.101 of the Government Code in conjunction with common-law privacy. The department must withhold the information we marked under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. With the exception of any information provided directly by a 9-1-1 caller, the department must withhold the information you marked under section 552.101 of the Government Code in conjunction with section 771.061 of the Health and Safety Code, to the extent such information originated from the department's 9-1-1 address database. The department must withhold the information we marked under section 552.101 of the Government Code in conjunction with common-law privacy and the motor vehicle record information you have marked under section 552.130 of the Government Code. With the exception of the social security number belonging to the requestor's client's minor child, the department may withhold the social security numbers you have marked under section 552.147 of the Government Code. The remaining information must be released. ⁽²⁾

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,

Claire V. Morris Sloan

Assistant Attorney General

Open Records Division

CVMS/som

Ref: ID# 469106

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note 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. See Gov't Code § 552.147(b).

2. We note the information being released includes information that may be confidential with respect to the general public. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individuals request information concerning themselves). Thus, if the department receives another request for this same information from a different requestor, the department must again seek a ruling from this office.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer