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February 5, 1999

Mr. Ajay R. Shah
Assistant City Attorney
Criminal Law and Police Division
City of Dallas
2014 Main Street, Room 206
Dallas, Texas 75201

OR99-0353

Dear Mr. Shah:

You have asked whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 121875.

The Dallas Police Department (the "department") was asked for "any and all police reports, incident reports, arrest records/reports and any related investigative reports" concerning a named individual. You submitted certain records for review that you contend are excepted from disclosure under chapter 411 of the Government Code in conjunction with section 552.101 of the Government Code.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Criminal history information may be withheld from required public disclosure under the common-law privacy aspect of section 552.101 if it meets the test set out by the Texas Supreme Court in Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). See also Gov't Code 411.084 (prohibiting release of criminal history information obtained from Department of Public Safety). Under the Industrial Foundation case, information may be withheld on common-law privacy grounds only if it is highly intimate or embarrassing and is of no legitimate concern to the public.

The privacy interest in criminal history record information has been recognized by federal regulations which limit access to criminal history record information that states obtain from the federal government or other states. See 28 C.F.R. 20; see also United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (finding criminal history information protected from disclosure under Freedom of Information Act, 5 U.S.C. 552, and the Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. 552a). Recognition of this privacy interest has been echoed in open records decisions issued by this office. See Open Records Decision Nos. 616 (1993), 565 (1990), 216 (1978), 183 (1978), 144 (1976), 127 (1976). (1)

In Houston Chronicle Publing Company v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n. r. e. per curiam, 536 S.W.2d 559 (Tex. 1976) (hereinafter "Houston Chronicle"), the court addressed the availability under the Open Records Act of certain broad categories of documents in the possession of a city police department, including offense reports, police blotters, "show-up" sheets, arrest sheets, and "Personal History and Arrest Records." The court held that some of this information was available to the public under the Open Records Act. However, the court also held that "Personal History and Arrest Records" were excepted from required public disclosure. These records primarily contained criminal histories, such as information regarding previous arrests and other data relating to suspected crimes, including the offenses, times of arrest, booking numbers, locations, and arresting officers. Houston Chronicle Publ'g Co., 531 S.W.2d at 179. Such a criminal history record is generally referred to as a "rap sheet." The court held that release of these documents would constitute an unwarranted invasion of an arrestee's privacy interests. Id. at 188.

The information requested here is of the same type made confidential by Houston Chronicle Publ'g Co. as it concerns the individual's criminal history. As noted above, federal and state case law regarding an individual's common-law right to privacy expressly prohibits the release of such information. Accordingly, we conclude that the department must withhold the requested information from required public disclosure under section 552.101 of the Government Code.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Yours very truly,

Ruth H. Soucy
Assistant Attorney General
Open Records Division

RHS/ch

Ref: ID# 121875

Enclosures: Submitted documents

cc: Ms. Melissa A. Miles
Haynes and Boone, L.L.P.
901 Main Street, Suite 3100
Dallas, Texas 75202
(w/o enclosures)


 

Footnotes

1.

1The Code of Federal Regulations defines "criminal history information" as "information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correctional supervision, and release." 28 C.F.R. 20.3(b). The information at issue here fits this description.
 

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