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April 25, 2000

Mr. Lou Bright
General Counsel
Texas Alcoholic Beverage Commission
P.O. Box 13127
Austin, Texas 78711-3127

OR2000-1611

Dear Mr. Bright:

You have asked whether certain information is subject to required public disclosure under the Texas Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 133966.

The Alcoholic Beverage Commission (the "TABC") received a request for information related to two named business establishments and the owners of those establishments. You have supplied responsive information, which you identify as attachments C, D and E, to this office for review. You assert that responsive information is excepted from public disclosure under sections 552.101, 552.103, 552.108, and 552.130 of the Government Code. We have considered the exceptions you raise and reviewed the submitted information.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. You contend that the social security numbers of TABC permitees and licensees is made confidential by section 51.251 of the Occupations Code. The relevant footnote to that statute reads,

[t]he social security number of an applicant for or holder of a license, certificate of registration, or other legal authorization issued by a licensing agency to practice in a specified occupation or profession that is provided to the licensing agency is confidential and is not subject to disclosure under the open records law.

Occupations Code 51.251.

The social security number information of applicants for or holders of licenses or other legal authorizations issued by TABC must therefore be withheld under section 552.101 of the Government Code in conjunction with section 51.251 of the Occupations Code.

You also seek to withhold the identities of informants under section 552.101. Section 552.101 protection extends to information made confidential by court decision. Texas courts recognize the informer's privilege, see Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928), and it is a well-established exception under the Public Information Act. Open Records Decision No. 549 at 4 (1990). In Roviaro v. United States, 353 U.S. 53, 59 (1957), the United States Supreme Court explained the rationale that underlies the informer's privilege:

What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [Citations omitted.] The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

The informer's privilege excepts an informer's statement only to the extent necessary to protect the informer's identity. Open Records Decision No. 549 at 5 (1990). Once the identity of the informer is known to the subject of the communication, the exception is no longer applicable. Open Records Decision No. 202 at 2 (1978). For information to come under the protection of the informer's privilege, the information must relate to a violation of a civil or criminal statute. See Open Records Decision Nos. 515 at 2-5 (1988), 391 (1983). You explain that the persons whose identity you seek to withhold revealed violation of civil laws which TABC has a duty to enforce. We agree that the informant identities in the submitted information as identified and highlighted by you in attachment C may be withheld under the "informer's privilege" aspect of section 552.101 of the Government Code.

Section 552.103(a), the "litigation exception," excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. To secure the protection of section 552.103(a), a governmental body has the burden of providing relevant facts and documents to show that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). To be excepted under section 552.103, the information must relate to litigation that is pending or reasonably anticipated on the date that the information was requested. Gov't Code 552.103(c). Contested cases conducted under the Administrative Procedure Act, chapter 2001 of the Government Code, are considered litigation under section 552.103. Open Records Decision No. 588 at 7 (1991). You relate that the information submitted as attachment D relates to a pending administrative action. From your representation and our review of these documents we conclude that information in attachment D may be withheld under section 552.103(a) of the Government Code. However, absent special circumstances, where the opposing party to the anticipated litigation has had access to the records at issue, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). The submitted information includes several items to which the opposing party has apparently had access. These items must be released. The remaining information in attachment D may be withheld. Also note that the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

You seek to withhold the information in attachment E in its entirety under Government Code section 552.108. This section excepts certain information held by "a law enforcement agency or prosecutor." Gov't Code 552.108(a), (b). TABC has not been recognized by this office as a law enforcement agency or prosecutor. However, you relate that Attachment E includes information shared with the Comptroller of Public Accounts (the "comptroller"). The comptroller is a law enforcement agency for purposes of administering the Tax Code. A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 678-679 (Tex. 1995). The comptroller contacted this office, asserting that the subject information shared with TABC pertains to a pending tax examination/audit and is therefore excepted from public disclosure by section 552.108. Section 552.108 may be invoked by a proper custodian of information which relates to an active criminal investigation or prosecution. Open Records Decision Nos. 474 (1987), 372 (1983). TABC is the custodian of the information in attachment E that it shared with the comptroller for purposes of administering the Tax Code. This information may be withheld under section 552.108. The information in attachment E that was not shared with the comptroller is not excepted by section 552.108 of the Government Code and must be released.

You also seek to withhold the identities of undercover police officers under section 552.108(b)(1) of the Government Code. This section provides,

[a]n internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if:

(1) release of the internal record or notation would interfere with law enforcement or prosecution;

From the included Dallas Police Department Report we conclude that the identities of the subject undercover police officers, which you have marked, is information in an internal law enforcement record, the release of which would interfere with law enforcement or prosecution and that TABC is a proper custodian of this information. You may therefore withhold these identities under section 552.108(b)(1) of the Government Code.

The submitted documents include information excepted under section 552.130 of the Government Code. This section governs the release and use of information obtained from motor vehicle records, and provides in relevant part as follows:

(a) Information is excepted from [required public disclosure] if the information relates to:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or]

(2) a motor vehicle title or registration issued by an agency of this state[.]

You must withhold Texas driver's license numbers, VIN numbers, and Texas license plate numbers pursuant to section 552.130.

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 Dep't 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# 133966

Encl. Submitted documents

cc: Mr. Dave Michaels
The Dallas Morning News
P.O. Box 655237
Dallas Texas 75265
(w/o enclosures)


 

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