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February 29, 2000

Mr. Leonard W. Peck, Jr.
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342-4004

OR2000-0745

Dear Mr. Peck:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133296.

The Department of Criminal Justice (the "department") received a request for complaints against Wackenhut Corrections Facilities. You claim that the requested information is excepted from disclosure under sections 552.101, 552.107, 552.108, and 552.131 of the Government Code. You have provided a sample of the responsive information to this office for review.(1) We have considered the exceptions you claim and reviewed the submitted information.

Since section 552.131 of the Government Code has the broadest application to the subject information, we shall address this exception to disclosure first. Section 552.131 reads

(a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department.

(b) Subsection (a) does not apply to:

(1) statistical or other aggregated information relating to inmates confined in one or more facilities operated by or under a contract with the department; or

(2) information about an inmate sentenced to death.

(c) This section does not affect whether information is considered confidential or privileged under Section 508.313.(2)

(d) A release of information described by Subsection (a) to an eligible entity, as defined by Section 508.313(d), for a purpose related to law enforcement, prosecution, corrections, clemency, or treatment is not considered a release of information to the public for purposes of Section 552.007 and does not waive the right to assert in the future that the information is excepted from required disclosure under this section or other law.

Information that is not "about an inmate" is not excepted from disclosure by section 552.131. Therefore, complaints that do not directly involve or identify specific inmates are not within the ambit of this exception. We note that the submitted information does not include statistical or other aggregate information, or information about an inmate sentenced to death, although such information could be the subject of a compliant.

Section 552.131 is explicitly made subject to section 552.029. This section, titled "Right of Access to Certain Information Relating to Inmate of Department of Criminal Justice," reads

Notwithstanding Section 508.313 or 552.131, the following information about an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice is subject to required disclosure under Section 552.029:

(1) the inmate's name, identification number, age, birthplace, physical description, or general state of health or the nature of an injury to or critical illness suffered by the inmate;

(2) the inmate's assigned unit or the date on which the unit received the inmate, unless disclosure of the information would violate federal law relating to the confidentiality of substance abuse treatment;

(3) the offense for which the inmate was convicted or the judgment and sentence for that offense;

(4) the county and court in which the inmate was convicted;

(5) the inmate's earliest or latest possible release dates;

(6) the inmate's parole date or earliest possible parole date;

(7) any prior confinement of the inmate by the Texas Department of Criminal Justice or its predecessor; or

(8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate.

We construe the term "basic information" in section 552.029(8) to comport with the use of that term in section 552.108(c) of the Government Code. In that context, this office has considered "basic information" to be analogous to the "front page" information held to be public in Houston Chronicle Publishing Co. 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);Open Records Decision No. 127 (1976). Such information regarding use of force incidents or alleged crimes involving an inmate includes the time and place of such an incident, the names of inmates and officials of the department who were directly involved, a brief narrative of the incident or crime, a brief description of any injury sustained, and information regarding any criminal charges or disciplinary actions that resulted

In regard to information that concerns "alleged crimes involving an inmate," you note that complaints sometimes allege criminal activities; that these complaints are typically investigated by your Internal Affairs Division ("IAD"); and that the IAD investigation may lead to an administrative dismissal of the complaint without a formal finding, or to a finding that the allegation is either "sustained," or "not sustained." You apparently take the position that where such complaints result in a finding of "not sustained" or are administratively closed with no finding of any kind, the complaint is outside of the "basic information" that must be released under section 552.029(8). You contend that "information about criminal allegations is available to the public only when there has been an arrest or indictment." You do not cite any authority in support of this contention. As previously noted, we consider "basic information" as used in section 552.029 of the Government Code to comport with the usage of that term in section 552.108 of the Government Code. In the section 552.108 context, there is no requirement that an investigated "crime" lead to formal charges, arrest or indictment. Indeed, there are provisions of section 552.108 that apply to investigations that did not lead to such charges. See Gov't Code 552.108(a)(2), 552.108(b)(2). We consider your construction of the language of section 552.029(8), limiting "alleged crime" to omit all but substantiated allegations, to be counter to the plain language of that statute and to be contrary to the application of parallel language in section 552.108. We conclude that unless made confidential by other law, "basic information" about incidents of alleged crimes involving inmates must be released, irrespective of the finding, or lack thereof, of your Internal Affairs Division. Further, as section 552.108 does not except "basic information" from disclosure, we conclude that section 552.108 does not except information from disclosure that is not also excepted by section 552.131.

Other than statistical or other aggregate information; information about an inmate sentenced to death; and information specified in section 552.029, all information in responsive complaints that identify or directly involve specific inmates must be withheld under Government Code section 552.131.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses common law privacy and excepts from disclosure private facts about an individual. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information may be withheld from the public when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Id. at 685; Open Records Decision No. 611 at 1 (1992). Applying that standard, our office opined that the identity of juvenile victims of serious sexual offenses is confidential. Open Records Decision No. 628 (1994). We have also held that the identities of all victims of serious sexual offenses is confidential. Open Records Decision No. 339 (1982). Also, information which would furnish a basis for identification of the victim is also excepted from disclosure. Id. The information which would tend to identify a victim of a serious sexual offense must therefore be redacted from the "basic" information about such an incident involving an inmate, and the remaining "basic" information must be released.

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. (3)

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/nc

Ref: ID# 133296

Encl Submitted documents

cc: Mr. Joe Ellis
The Texas Network
501 East 11th Street, Suite 420
Austin, Texas 78701
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

2. Government Code section 508.313(a) makes confidential all information obtained and maintained by the Board of Pardons and Paroles that regards an inmate of the institutional division subject to release on parole, release to mandatory supervision, or executive clemency; a releasee; or a person directly identified in any proposed plan of release for an inmate.

3. This ruling is limited to the application of sections 552.029, 552.108, and 552.131. This ruling does not consider the applicability and effect of the Final Judgment in the case of Ruiz v. Collins, No. H-78-987 (S.D. Tex., filed Dec. 11, 1992), to the information at issue. However, we note that Ruiz is still in effect and it prohibits the release of certain "sensitive information," which may include information required to be released under section 552.029. We remind you that section 552.107(2) of the Government Code requires you to withhold information that is made confidential by court order, and that section 552.352 prescribes criminal penalties for the disclosure of confidential information.
 

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