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December 14, 1999

Ms. Katherine Minter Cary
Assistant Attorney General
Public Information Coordinator
Office of the Attorney General
P. O. Box 12548
Austin, Texas 78711-2548

OR99-3633

Dear Ms. Cary:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 130277.

The Office of the Attorney General (the "AG") received a request for "information from the files of crime victim claims in which awards were made by TX crime victim compensation fund from 1995-1998." The requestor seeks:

1. First and last name;

2. Address;

3. Date of birth;

4. Phone number or contact number; and

5. Social Security Number.

You claim that the requested information is excepted from disclosure under sections 552.101 and 552.132 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

The Seventy-sixth Legislature amended Chapter 552 of the Government Code, creating section 552.132, which reads

(a) In this section, "crime victim" means a victim under Subchapter B, Chapter 56, Code of Criminal Procedure, who has filed an application for compensation under that subchapter.

(b) A crime victim may elect whether to allow public access to information held by the crime victim's compensation division of the attorney general's office that relates to:

(1) the name, social security number, address, or telephone number of the crime victim; or

(2) any other information the disclosure of which would identify or tend to identify the crime victim.

(c) An election under Subsection (b) must be:

(1) made in writing on a form developed by the attorney general for that purpose and signed by the crime victim; and

(2) filed with the crime victims' compensation division before the third anniversary of the date that the crime victim filed the application for compensation.

(d) If the crime victim elects not to allow public access to the information, the information is excepted from the requirements of Section 552.021. If the crime victim does not make an election under Subsection (b) or elects to allow public access to the information, the information is not excepted from the requirements of Section 552.021 unless the information is made confidential or excepted from those requirements by another law.

(e) If the crime victim is awarded compensation under Section 56.34, Code of Criminal Procedure, as of the date of the award of compensation, the name of the crime victim and the amount of compensation awarded to that victim are public information and are not excepted from the requirements of Section 552.021.

The release of information held by the Attorney General which identifies individuals who have filed applications for compensation under Subchapter B, Chapter 56, Code of Criminal Procedure, is generally controlled by this statute. The request addresses only individuals who have received compensation. The names of these individuals are made public by Government Code section 552.132(e). Other than names, any information which would tend to identify those individuals who elected nondisclosure must be withheld pursuant to Government Code section 552.132(d). Information about individuals who have elected disclosure under 552.132(b) and 552.132(c) or who made no election, is not excepted from disclosure by this statute "unless the information is made confidential or excepted from those requirements by another law." Gov't Code 552.132(d).

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information coming within the common-law right to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Common-law privacy protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and it is of no legitimate concern to the public. Id. at 683-85. Section 552.101 also embraces constitutional privacy. See Industrial Found., 540 S.W.2d at 678. The constitutional right to privacy consists of two related interests: 1) the individual interest in independence in making certain kinds of important decisions, and 2) the individual interest in independence in avoiding disclosure of personal matters. The first interest applies to the traditional "zones of privacy" described by the United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), and Paul v. Davis, 424 U.S. 693 (1976). These "zones" include matters related to marriage, procreation, contraception, family relationships, and child rearing and education.

The second interest, in nondisclosure or confidentiality, may be somewhat broader than the first. The test for constitutional privacy involves a balancing of the individual's privacy interests against the public's need to know information of public concern. See generally Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985).

Information concerning the victims of crimes is afforded constitutional protection. See generally Tex. Const. art. I, 30(a) (crime victim has right to be treated with respect in order to protect the victim's dignity and privacy); Attorney General Opinion JM-81 (1983) (names of parents of SIDS victims protected by right of privacy). However, there is generally a legitimate public interest in information as to applicants for or recipients of public funds. See generally Open Records Decision No. 600 (1992). We believe this balance is struck by releasing the names of compensated victims and the amount of their compensation as required by Government Code section 552.132(e). The balance of the subject information is protected by a constitutional right of privacy. Compensated victims who affirmatively elect to have information disclosed under subsections 552.132(b) and 552.132(c) thereby waive their privacy right in that information. Requested information regarding these individuals is therefore not made confidential or excepted from the disclosure requirements of the Government Code, and must be released.

However, those individuals who did not make an election to disclose information have not waived their privacy rights in that information. Therefore, with the exception of the requested names, responsive information concerning those victims who did not elect disclosure must be withheld under Government Code section 552.101 in conjunction with a constitutional right of privacy.

In summary, all of the requested names must be released, as must the requested addresses, dates of birth, phone numbers and social security numbers of victims that elected disclosure. The addresses, dates of birth, phone numbers and social security numbers of victims that did not elect disclosure must be withheld.

This letter ruling is limited to the particular records 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 records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/ch

Ref: ID# 130277

Encl. Submitted documents

cc: Mr. Dorit Eilon
ABC News 20/20
147 Columbus Avenue
New York, New York 10023
(w/o enclosures)


 

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