December 20, 2012

Ms. Lillian Guillen Graham

Assistant City Attorney

City of Mesquite

P.O. Box 850137

Mesquite, Texas 75185-0137

OR2012-20540

Dear Ms. Graham:

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# 474304.

The Mesquite Police Department (the "department") received a request for four specified reports, calls for service within a specified time period, and all arrest reports on a named individual. You claim the submitted information is excepted from disclosure under sections 552.101, 552.130, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note you have not submitted two of the requested reports. To the extent these reports existed on the date the department received the request, we assume you have released them. If you have not released these reports, you must do so at this time. See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body concludes no exceptions apply to requested information, it must release information as soon as possible).

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, in part, seeks all reports pertaining to the named individual. This portion of the request requires the department to compile the named individual's criminal history. Therefore, to the extent the department maintains unspecified law enforcement records, other than information pertaining to the specified incidents, listing any of the named individuals as suspects, arrestees, or criminal defendants, the department must withhold such information under section 552.101 of the Government Code in conjunction with common-law privacy. However, we note you have submitted two reports specified by the requestor. This information is not part of a compilation of the named individual's criminal history and may not be withheld under section 552.101 of the Government Code on that basis.

The types of information considered highly 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. Indus. Found. 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.

We understand you to argue the submitted specified reports must be withheld in their entirety on the basis of common-law privacy. In this instance, the request for information, as well as the information at issue, reveals the requestor knows the identity of the individual involved as well as the nature of the information at issue in one of the reports. Therefore, withholding only the subject person's identity or certain details of the incident from the requestor would not preserve the subject individual's common-law right of privacy in that report. Accordingly, to protect the privacy of the individual to whom the information relates, the department must withhold the report we have marked in its entirety under section 552.101 of the Government Code in conjunction with common-law privacy. However, you have not demonstrated, nor does it otherwise appear, the incident at issue in the remaining report is a situation in which the remaining report must be withheld in its entirety on the basis of common-law privacy. Accordingly, the department may not withhold the remaining report in its entirety under section 552.101 in conjunction with common-law privacy. However, we find portions of the remaining information are highly intimate and embarrassing and not of legitimate public interest. Thus, the department must withhold the information you have marked, and the additional information we have marked, in the remaining information under section 552.101 of the Government Code in conjunction with common-law privacy. ⁽¹⁾

Section 552.130 of the Government Code excepts from disclosure information that relates to a motor vehicle operator's or driver's license issued by an agency of this state or another state or country. Gov't Code § 552.130(a)(1). Therefore, the department must withhold the information you have marked under section 552.130.

In summary, to the extent the department maintains unspecified law enforcement records, other than information pertaining to the specified incidents, listing any of the named individuals as suspects, arrestees, or criminal defendants, 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 submitted specified report we have marked in its entirety, the information you have marked in the remaining information, and the additional information we have marked in the remaining information under section 552.101 in conjunction with common-law privacy. The department must withhold the information you have marked under section 552.130 of the Government Code. The remaining information must be released.

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,

Jonathan Miles

Assistant Attorney General

Open Records Division

JM/bhf

Ref: ID# 474304

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. As our ruling is dispositive, we need not address your remaining arguments for the information at issue.

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