December 21, 2012

Mr. Mark G. Daniel

Counsel for the City of Watauga

Evans, Daniel, Moore, Evans & Lazarus

115 West Second Street, Suite 202

Fort Worth, Texas 76102

OR2012-20710

Dear Mr. Daniel:

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# 474811 (PIR Request 12-463).

The Watauga Police Department (the "department"), which you represent, received a request for all reports and calls for a specified time period pertaining to a specified address. You state the department has released some information to the requestor. You also state the department will redact the telephone number and address of 9-1-1 callers pursuant to Open Records Letter No. 2011-17222 (2011). ⁽¹⁾ You claim portions of the submitted information are excepted from disclosure under sections 552.101, 552.108, 552.130, 552.136, and 552.147 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. This section 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). You seek to withhold report numbers 12WP004741 and 12WP004745 and the related 9-1-1 audio recordings under section 552.101 in conjunction with section 58.007. 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). The information at issue involves juvenile delinquent conduct or conduct indicating a need for supervision that occurred after September 1, 1997. See id. § 51.03 (defining "delinquent conduct" and "conduct indicating a need for supervision" 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 report numbers 12WP004741 and 12WP004745 and the related 9-1-1 audio recordings under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. ⁽²⁾

You seek to withhold some of the remaining information under section 552.108(a)(1) of the Government Code, which 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 claiming section 552.108(a)(1) must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state reports numbers 12WP014495, 12WP003387, and 10-1439 pertain to active criminal investigation. Further, you state, and provide documentation showing, report number 12WP005227 pertains to a pending criminal prosecution. Based on your representation, we conclude the release of the information at issue 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 that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Thus, section 552.108(a)(1) is applicable to report numbers 12WP014495, 12WP003387, 10-1439, and 12WP005227 .

However, we note 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). Basic information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 186-88; Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Thus, with the exception of the basic information, which must be released, the department may withhold report numbers 12WP014495, 12WP003387, 10-1439, and 12WP005227 under section 552.108(a)(1) of the Government Code. ⁽³⁾

Section 552.101 of the Government Code also 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 demonstrated. See id. at 681-82. 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. This office has 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). Upon review, we find some of the remaining information is highly intimate or embarrassing and not of legitimate public concern. Therefore, the department must withhold the information we have marked and indicated in the remaining reports and 9-1-1 audio recordings under section 552.101 of the Government Code in conjunction with common-law privacy. However, we find none of the remaining information you seek to withhold is highly intimate or embarrassing and of no legitimate public interest. Therefore, none of the remaining information at issue may be withheld under section 552.101 on that basis.

Section 552.101 of the Government Code also encompasses the doctrine of constitutional privacy. Constitutional privacy consists of two inter-related types of privacy: (1) the right to make certain kinds of decisions independently and (2) an individual's interest in avoiding disclosure of personal matters. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Open Records Decision Nos. 600 at 3-5 (1992), 478 at 4 (1987), 455 at 3-7. The first type protects an individual's autonomy within "zones of privacy," which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. ORD 455 at 4. The second type of constitutional privacy requires a balancing between the individual's privacy interests and the public's need to know information of public concern. Id. at 7. The scope of information protected by constitutional privacy is narrower than that under the common-law doctrine of privacy; constitutional privacy under section 552.101 is reserved for "the most intimate aspects of human affairs." Id. at 5 (quoting Ramie v. City of Hedwig Village, Tex., 765 F.2d 490 (5th Cir. 1985)). Upon review, we find no portion of the remaining information falls within the zones of privacy or otherwise implicates an individual's privacy interests for purposes of constitutional privacy. Therefore, the department may not withhold any of the remaining information under section 552.101 in conjunction with constitutional 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. We find portions of the submitted information, which we have marked, consist of motor vehicle record information. Accordingly, the department must withhold the motor vehicle record information we have marked under section 552.130 of the Government Code. However, upon review, we find the remaining information you have marked does not constitute motor vehicle record information, and therefore, may not be withheld under section 552.130 of the Government Code.

In summary, the department must withhold report numbers 12WP004741 and 12WP004745 and the related 9-1-1 audio recordings under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. With the exception of the basic information, the department may withhold report numbers 12WP014495, 12WP003387, 10-1439, and 12WP005227 under section 552.108(a)(1) of the Government Code. The department must withhold the information we have marked and indicated under section 552.101 of the Government Code in conjunction with common-law privacy. The department must withhold the information we have marked under section 552.130 of the Government Code. 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,

Cynthia G. Tynan

Assistant Attorney General

Open Records Division

CGT/akg

Ref: ID# 474811

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Open Records Letter No. 2011-17222 is a previous determination issued to the department authorizing the department to withhold the originating telephone numbers and addresses of 9-1-1 callers provided by a 9-1-1 service supplier under section 552.101 in conjunction with section 772.218 without requesting a decision from this office.

2. As our ruling for this information is dispositive, we need not address your remaining arguments against its disclosure.

3. Although basic information includes an arrestee's social security number, 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). Furthermore, as our ruling for this information is dispositive, we need not address your remaining arguments against its disclosure except to note basic information described in Houston Chronicle does not include information subject to section 552.130 of the Government Code. See Open Records Decision No. 597 (1991).

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