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December 18, 2000

Ms. Elaine S. Hengen
Assistant City Attorney
City of El Paso
2 Civic Center Plaza
El Paso, Texas 79901-1196

OR2000-4738

Dear Ms. Hengen:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 142445.

The City of El Paso (the "city") received a request for information pertaining to two separate investigations: 1) an investigation regarding Sissy the elephant; and 2) an investigation regarding a specific police officer. You state that the city has released some of the requested information, but you state that the submitted information is excepted from disclosure under sections 552.101, 552.108, 552.117, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information, some of which has been submitted as representative samples.(1)

We begin with the information submitted as Exhibits B, C, and D. You claim that this information is excepted under section 552.108. Section 552.108 of the Government Code provides in relevant part:

(a) 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:

(1) release of the information would interfere with the detection, investigation, or prosecution of crime;

(2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication; or

. . .

(b) An 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 [required public disclosure] if:

. . .

(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.]

. . . .

  • This section does not except from [public disclosure]

information that is basic information about an arrested person, an

arrest, or a crime.

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 the release of the requested information would interfere with law enforcement. See Gov't Code 552.108(a), (b), .301(e); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).

In regard to the criminal offense report contained in Exhibit B, you explain that it pertains to a pending criminal prosecution. Based on this representation, we find that release of this report would interfere with an ongoing criminal case, and therefore, the report is subject to section 552.108(a)(1). In regard to the offense report contained in Exhibit C, you explain that it pertains to a criminal matter which has concluded and which did not result in conviction or deferred adjudication. Based on this representation, we find that this report is subject to section 552.108(a)(2).

However, information normally found on the front page of an offense report is generally considered public. See generally Gov't Code 552.108(c); Houston Chronicle Publ'g 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). Thus, the city must release the type of information that is considered to be front page offense report information, even if this information is not actually located on the front page of the submitted reports contained in Exhibits B and C. Although section 552.108 authorizes the city to withhold the remainder of the offense reports submitted as Exhibits B and C from disclosure, you may choose to release all or part of the reports that is not otherwise confidential by law. See Gov't Code 552.007.

Exhibit D contains a portion of an internal investigation report which pertains to the same incident involved in the criminal investigation report contained in Exhibit C. You explain that Exhibit D contains a representative sample of witness statements and factual summaries "that cover the same incident and subject matter as the criminal investigation regarding the same subject matter." We agree that Exhibit D contains internal records that relate to a concluded criminal matter that did not result in conviction or deferred adjudication, and is therefore excepted under section 552.108(b)(2). See Morales v. Ellen, 840 S.W. 2d 519 (Tex. App.-El Paso 1992) (section 552.108 applies where criminal investigation resulted from internal investigation). Therefore, the city may withhold Exhibit D.

We now turn to Exhibit E, most of which you claim is confidential under section 552.101 in conjunction with common law privacy. 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. Generally, the public has a genuine interest in information concerning a public employee's job performance and the reasons for dismissal, demotion or promotion. Open Records Decision No. 444 at 5-6 (1986); see also Open Records Decision No. 208 (1978) (disciplinary action against public employee available to public).

You argue that the highlighted portion of the first page in Exhibit E and all of the three remaining pages fall under common law privacy. In this case, we believe that there is a legitimate public interest in the information at issue because it involves disciplinary action for misconduct. Therefore, we find that none of the information contained in Exhibit E falls under common law privacy. Accordingly, the city must release Exhibit E to the requestor.

Exhibit F contains emergency medical service ("EMS") records, the release of which is governed by section 773.091 of the Health and Safety Code as encompassed by section 552.101 of the Government Code. As explained above, section 552.101 encompasses confidentiality statutes such as section 773.091 of the Health and Safety Code. Section 773.091 provides in part:

(a) A communication between certified emergency medical services personnel or a physician providing medical supervision and a patient that is made in the course of providing emergency medical services to the patient is confidential and privileged and may not be disclosed except as provided by this chapter.

(b) Records of the identity, evaluation, or treatment of a patient by emergency medical services personnel or by a physician providing medical supervision that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider are confidential and privileged and may not be disclosed except as provided by this chapter.

This confidentiality "does not extend to information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services." Id. 773.091(g). We find that the information submitted as Exhibit F constitutes EMS records that are confidential under section 773.091, except for information required to be released under subsection (g).

Exhibit G contains several criminal history compilations. As explained above, section 552.101 encompasses common law privacy. 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). Exhibit G consists of criminal history compilations regarding several individuals. We believe that these individuals' privacy rights have been implicated. Thus, under section 552.101, the city must withhold Exhibit G.

In regard to Exhibit H, you argue that all but one of the highlighted portions are confidential under section 552.101 in conjunction with section 58.007 of the Family Code. Section 552.101 encompasses confidentiality provisions such as Family Code section 58.007. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. The relevant language of section 58.007(c) reads as follows:

(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.

Section 51.02(2)(A) defines "child" as a person who is ten years of age or older and under seventeen years of age.

You explain that most of the highlighted information in Exhibit H was directly derived from juvenile law enforcement records pertaining to conduct that occurred on or after September 1, 1997. Based on your representations and our review of this information, the city must withhold this highlighted information from disclosure under section 552.101 of the Government Code.

Exhibit H also contains a Texas license plate number that appears to be unrelated to any juvenile law enforcement records. Section 552.130 of the Government Code prohibits the release of 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, under section 552.130, the city must withhold the Texas license plate number that appears in Exhibit H.

As to Exhibit I, you state that the highlighted information was the subject of a previous letter ruling, Open Records Letter No. 2000-0491 (2000). The highlighted information consists of portions of the El Paso Police Department's use of force policy. You state that it was this exact information that was determined to be excepted from required public disclosure under section 552.108 in the previous letter ruling. Therefore, the city may continue to rely on the previous ruling and withhold the highlighted information. See Gov't Code 552.301(a).

Exhibit J consists of a representative sample of documents that contain motor vehicle information. Exhibit J contains a Texas license plate number, several Texas vehicle identification numbers, and several Texas drivers' license numbers. These highlighted numbers are all confidential motor vehicle information under section 552.130 as explained above. Therefore, the city must withhold the highlighted information in Exhibit J.

Finally, exhibit K consists of a representative sample of documents that contain certain types of personal information about a police officer. Subsection 552.117(2) provides for the confidentiality of current and former peace officers' home addresses, home telephone numbers, social security numbers, and family member information. We agree that the highlighted information in Exhibit K is excepted from disclosure under section 552.117(2). Therefore, the city must withhold this information.

In conclusion, the city may withhold Exhibits B, C, and D under section 552.108. However, pursuant to section 552.108(c), the city must release front page information from the police reports contained in Exhibits B and C. The city may only release Exhibit F in accordance with section 773.091 of the Health and Safety Code. The city must withhold Exhibit G under section 552.101 in conjunction with common law privacy. In regard to Exhibit H, the city must withhold the highlighted information that pertains to juveniles under section 58.007 of the Family Code as encompassed by section 552.101. The city must withhold the highlighted driver's license number in Exhibit H and the highlighted motor vehicle information in Exhibit J under section 552.130. The city may withhold the highlighted portions of Exhibit I to the extent it was determined to be excepted in previous letter ruling, Open Records Letter No. 2000-0491 (2000). Finally, the city must withhold the highlighted information in Exhibit K under section 552.117(2). The city must release the remainder of the requested information.

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 Hadassah Schloss at 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,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF\er

Ref: ID# 142445

Encl: Submitted documents

cc: Mr. Louie Gilot
El Paso Times
P.O. Box 20
El Paso, Texas 79999
(w/o enclosures)


 

Footnotes

1. We assume that the "representative samples" of records submitted to this office are truly representative of all of the information at issue. 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 those submitted to this office.
 

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