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October 10, 2000

Mr. J. Middlebrooks
Assistant City Attorney
City of Dallas
2014 Main, Room 501
Dallas, Texas 75201

OR2000-3877

Dear Mr. Middlebrooks:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 140552.

The City of Dallas Police Department (the "department") received a request for the complete Internal Affairs file of a named police officer, which you have submitted for our review. You assert that portions of the submitted information are excepted from disclosure under section 552.101 of the Government Code in conjunction with the common law right to privacy.(1) We have considered the exception you assert and we have reviewed the submitted information.

Section 552.101 excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses the common law right to privacy. The common law right to privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).

The Texas Supreme Court in Industrial Foundation articulated examples of information about private citizens that meets the first prong of this test, and included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683. This office has also acknowledged such privacy interests. See, e.g., Open Records Decision Nos. 470 (the fact that a person broke out in hives as a result of severe emotional distress is protected by common law privacy), 455 (1987) (the kinds of prescription drugs a person is taking is protected by common law privacy), 343 (1982) (information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/seizures, and emotional/mental distress is protected by common law privacy).

We agree that much of the information you seek to withhold meets the first prong of the above-stated common law privacy test. However, to be excepted from disclosure by common law privacy, the information must also be of no legitimate public concern. The facts before us indicate that substantial public resources were spent in conducting the Internal Affairs investigation at issue, which concerned accusations and findings of criminal conduct and violations of department policy, and that the results of the investigation revealed both criminal conduct and a violation of department policy. This office has stated that "[t]he public has a substantial interest in knowing whether their public servants are carrying out their duties in an efficient and law-abiding manner." Open Records Decision No. 447 at 5 (1986). Due to the public interest in the information, we do not agree that the information you have marked for redaction meets both prongs of the above-stated common law privacy test so as to be excepted from disclosure under section 552.101. Indeed, this office has long held that the common law right to privacy does not protect facts about a public employee's alleged job-related misconduct or complaints made about his performance. See Open Records Decision Nos. 438 (1986), 230 (1979), 219 (1978). As both prongs of the common law privacy test have not been met in this instance, we conclude that the information is not excepted from disclosure by section 552.101.

We note, however, that some of the information is excepted from disclosure under section 552.117(2) of the Government Code. See Gov't Code 552.117. Section 552.117(2) excepts from public disclosure information that reveals a peace officer's home address, home telephone number, social security number, and whether the officer has family members. The department must withhold this information of a peace officer (as that term is defined in Article 2.12 of the Code of Criminal Procedure), regardless of whether the officers elected under section 552.024 to have this information withheld. We believe section 552.117(2) also protects from disclosure an officer's former home telephone number. See Open Records Decision No. 622 (1994). You have already redacted from the submitted documents certain information, most of which we agree must be withheld pursuant to section 552.117(2). We have also marked additional information which we believe must also be withheld pursuant to section 552.117(2).(2) However, we note that we do not believe that the protection of section 552.117 extends to the personal information of an individual that is contained in law enforcement records pertaining to a criminal investigation, merely because the individual happens to also be a peace officer or public employee.

In summary, none of the submitted information is excepted from disclosure by section 552.101 in conjunction with the common law right to privacy. However, the department must redact the information we have marked pursuant to section 552.117(2) of the Government Code. The remaining 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.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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 Garbarino
Assistant Attorney General
Open Records Division

MG/pr

Ref: ID# 140552

Encl. Submitted documents

cc: Mr. Jack Hurd
4777 Memorial, #1131
The Colony, Texas 75056
(w/o enclosures)


 

Footnotes

1. You have marked with pink flags the pages that you contend contain information that is excepted under section 552.101, and you have marked the specific information at issue.

2. We have marked with yellow flags the pages that contain information that must be withheld pursuant to section 552.117(2), and we have marked for redaction the specific information at issue.
 

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