Recognizing that open government works best when rulings can be promptly issued, the Open Records Division (ORD) instituted a process to issue certain types of rulings more quickly. As part of this process, ORD is issuing abbreviated or memorandum rulings in certain instances. When ORD receives a request for a ruling, it is first assessed by staff to determine the level of difficulty that bears a direct relationship to the amount of time needed to rule on the request. Most requests for ruling that ORD receives require more time to resolve and require a complete explanation of the circumstances involved, the records at issue, and the applicable law. However, those requests that relate to information that is often requested and present no new or difficult issues are ruled on as quickly as possible.
To ensure that the affected parties receive a ruling quickly, the memorandum rulings identify as briefly as possible the ruling requested, the documents at issue, and the ruling as to the availability of the information. Issuance of some rulings in this manner results in a more efficient use of administrative resources and expeditious issuance of rulings. In this process, however, it is important that the public and governmental bodies understand the laws that form the basis for a memorandum ruling. To aid in a full understanding of this office's rulings, descriptions of the Public Information Act's exceptions that permit governmental bodies to withhold certain types of information from public disclosure are presented below.
Letter rulings are limited to the particular records at issue in a request and limited to the facts as presented to us; therefore, a ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.
The issuance of a 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 a ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge a 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 a 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 a 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 a letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of a 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 a 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); Tex. Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ).
Please remember that under the Public Information 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 ORD's Education and Enforcement Section at (888) OR-COSTS (672-6787) or (512) 475-2497.
A governmental body, the requestor, or any other person with questions or comments about a ruling 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.
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 and common-law privacy.
The court of appeals concluded public citizens’ dates of birth are protected by common-law privacy pursuant to section 552.101. Paxton v. City of Dallas, No. 03-13-00546-CV, 2015 WL 3394061, at *3 (Tex. App.—Austin May 22, 2015, pet. denied) (mem. op.).
A compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). Furthermore, a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. In instances in which a requestor asks for all information concerning a named person, that person's right to privacy is implicated. Therefore, to the extent the law enforcement records depict the named individual as a suspect, arrestee, or criminal defendant, a governmental body must withhold such information under section 552.101 in conjunction with common-law privacy.
Juvenile law enforcement records are confidential under section 58.008(b) of the Family Code, which reads as follows:
(b) Except as provided by Subsection (d), law enforcement records concerning a child and information concerning a child that are stored by electronic means or otherwise and from which a record could be generated may not be disclosed to the public and shall be:
1. if maintained on paper or microfilm, kept separate from adult records;
2. if maintained electronically in the same computer system as adult records, accessible only under controls that are separate and distinct from the 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 Subsection (c) or Subchapter B, D, or E.
Section 58.008(b) applies to records created before, on, or after September 1, 2017. If the exceptions in section 58.008 do not apply, then the requested information is confidential pursuant to section 58.008(b) of the Family Code and must be withheld under section 552.101 of the Government Code.
NOTE: The 85th Legislature repealed section 58.007(c) and re-designated it as section 58.008(b) with no substantive change to the provision. Act of May 28, 2017, 85th Leg., R.S., S.B. 1304, § 13 (to be codified at Fam. Code § 58.008(b)).
Section 261.201 of the Family Code reads in part as follows:
If the requested information consists of reports, records, and working papers used or developed in an investigation made under chapter 261 of the Family Code, and the investigating agency has not cited to a rule it has adopted regarding the release of this type of information, the information is confidential under section 261.201(a) of the Family Code and must be withheld under section 552.101 of the Government Code.
Section 552.104 of the Government Code excepts information from required public disclosure if release of the information would give advantage to a competitor or bidder. The test under section 552.104 is whether knowing another bidder’s or competitor’s information would be an advantage, not whether it would be a decisive advantage. Boeing Co. v. Paxton, No. 12-1007, 2015 WL 3854264, at *9 (Tex. June 19, 2015). This exception protects information from public disclosure if the governmental body demonstrates potential harm to its or a competitor’s interests in a particular competitive situation. See Open Records Decision No. 463 (1987).
Section 552.108(a)(1) 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." Information pertaining to a pending case is one example where release of that information would interfere with the detection, investigation, or prosecution of crime and may therefore be withheld.
Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. A governmental body claiming section 552.108(a)(2) must demonstrate the requested information relates to a criminal investigation that has concluded and the final result was something other than a conviction or deferred adjudication.
However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). We believe such basic information refers to the information held to be public in 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). Thus, in instances where section 552.108 is applicable, with the exception of the basic front page offense and arrest information, a governmental body may withhold the requested information.
Types of Basic Information
See Open Records Decision No. 127 (1976).
Section 552.130 provides in relevant part:
This exception requires a governmental body to withhold motor vehicle information such as the driver's license number, vehicle identification number, the type/class of license, copy of the license and license plate number under section 552.130.
Section 552.147 excepts from public disclosure the social security number of a living person.
For further explanation of the exceptions and statutes discussed above, please see the Public Information Act Handbook.