|Office of the Attorney General - State of Texas
July 26, 2000
Ms. Elaine S. Hengen
Dear Ms. Hengen:
You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 137480.
The City of El Paso Police Department (the "department") received a request for incident report number 98-336319, along with all police reports relating to a named individual, and copies of specified photos.(1) The department indicates that it has released certain basic information to the requestor.(2) You claim that the remaining information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
The department asserts that the police report contained in Exhibit B is excepted from required public disclosure under section 552.108 of the Government Code. Section 552.108 states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). Generally, a governmental body claiming an exception under section 552.108 must reasonably explain, if the information does not supply the explanation on its face, how and why section 552.108 is applicable. See Gov't Code §§ 552.108, .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You explain that the requested documents found in Exhibit B relate to an ongoing investigation. Because the investigation is pending, we believe that the release of the information contained in Exhibit B would interfere with the detection, investigation, or prosecution of crime. Thus, you may withhold most of the information in Exhibit B under section 552.108(a)(1).
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 also 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). Where an individual's criminal history information has been compiled by a governmental entity, the information takes on a character that implicates the individual's right to privacy. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). In this instance, the requestor asks for all the police records of a certain named individual. Thus, we believe that this individual's right to privacy has been implicated. Therefore, to the extent that the department has records in which the named individual is a possible suspect, we conclude that the department must withhold this information under section 552.101 of the Government Code. See id.; see also Gov't Code § 411.106(b). Those records in which the named individual is merely a complainant or witness may not be withheld under section 552.101. We have marked the information in Exhibit C that you must withhold under section 552.101.
Section 552.130 of the Government Code excepts from disclosure information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. Therefore, you must withhold all Texas driver's license numbers, license plate numbers, and VIN numbers.
Finally, the social security numbers contained in your records may be confidential if they were obtained or are maintained by the department pursuant to any provision of law, enacted on or after October 1, 1990. 42 U.S.C. § 405(c)(2)(C)(viii)(I); see Open Records Decision No. 622 (1994). Section 552.352 of the Government Code provides criminal penalties for the release of information considered confidential under chapter 552. A violation under section 552.352 is a misdemeanor constituting official misconduct. Gov't Code § 552.352(b), (c).
In summary, the department must release basic information but may withhold the remainder of Exhibit B under section 552.108 of the Government Code. Those records found in Exhibit C in which the named individual is a possible suspect must be withheld under section 552.101. Texas driver's license numbers must be withheld under section 552.130. Any social security numbers obtained or maintained by the department pursuant to any provision of law enacted on or after October 1, 1990, must also be withheld. The remaining responsive information must be released to the requestor.
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.
Ref: ID# 137480
Encl. Submitted documents
cc: Mr. Mario Gonzalez
1. You state that this office previously addressed the issue of these requested photos in Open Records Letter No. 2000-0084 (2000), and that you will release the requested photographs to the requestor pursuant to that ruling.
2. See Gov't Code § 552.108(c); 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).
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