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John Cornyn
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  Dallas

March 9, 1999

Ms. J. Middlebrooks
Assistant City Attorney
Criminal Law and Police Section
City of Dallas
2014 Main, Room 501
Dallas, Texas 75201

OR99-0663

Dear Mr. Middlebrooks:

You have asked whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 122675.

The City of Dallas (the "city") received a request for "[c]omplaints submitted to the city in the past two years, dealing specifically with the response time by the Dallas Police Department." You state that the city has already released to the requestor some information which is responsive to the request, but you assert that other responsive information is protected from disclosure. You submitted to this office the following categories of information that you contend are protected from disclosure under sections 552.101, 552.103, and 552.108 of the Government Code: (1) an internal affairs file and (2) police officers' cellular telephone numbers. You assert that the internal affairs file is protected from disclosure in its entirety by sections 552.103(a) and 552.108 of the Government Code, and that the common-law privacy aspect of section 552.101 protects some portions of the internal affairs file from disclosure. You contend that the cellular numbers are protected from disclosure under section 552.108.

We first address the internal affairs file. We note that while the file contains some information that is responsive to the request for complaint information about response time, the file also contains information about an alleged sexual assault of a minor by a former police officer. Section 552.101 of the Government Code excepts information from required public disclosure when the information is confidential by law. Subsection (a) of section 261.201 of the Family Code provides:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with . . . [the Family] code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under . . . chapter [261 of the Family Code] and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under . . . chapter [261 of the Family Code] or in providing services as a result of an investigation.

The victim of the alleged assault was a child for purposes of chapter 261. See Fam. Code 101.003 (child is generally defined as "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purpose"). Our review indicates that part of the internal affairs file consists of "reports, records, communications, and working papers used or developed" in a criminal investigation made under chapter 261 of the Family Code. We have marked this information, which may be disclosed only for purposes consistent with the Family Code and applicable federal or state law or under rules adopted by the Dallas Police Department, which is the agency that investigated the allegation. Since you have not informed this office that the police department has adopted any rules providing for release of this information, we conclude that the information we have marked is confidential and may not be disclosed.(1)

The remaining internal affairs file documents, which we have marked, do not appear to be related to the sexual assault and are thus not protected under chapter 261. We will address your other arguments against disclosure of these records. To show that section 552.103(a) is applicable, a governmental entity must show that (1) litigation is pending or reasonably anticipated and (2) the information at issue is related to the litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin, 1997, no pet.), Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The governmental entity must meet both prongs of this test for information to be excepted under section 552.103(a). You state that there is pending criminal litigation concerning the alleged sexual assault of a child. However, the remaining records do not appear to be related to the sexual assault and thus are not protected from disclosure under section 552.103(a).

Section 552.108(a)(1) provides an exception from disclosure for information that is held by a law enforcement agency or prosecutor and that deals with the detection, investigation, or prosecution of crime, when release of such information would interfere with the detection, investigation, or prosecution of crime. You explain that there is a pending prosecution concerning the alleged sexual assault. However, the remaining records do not appear to be related to the pending prosecution and thus may not be withheld from disclosure under section 552.108.

You also assert that section 552.108 protects from disclosure the cellular telephone numbers of police officers. In Open Records Decision No. 506 (1998), this office determined that section 552.108 could protect from disclosure the telephone numbers of officials with law enforcement responsibilities. You explain how releasing the cellular telephone numbers of the officers to the general public could lead to interference with the officers' abilities, while on patrol, to perform their job duties. We agree that the cellular telephone numbers may be withheld from disclosure under section 552.108.

You have marked information in one section of the report that discloses the home address, home telephone number, and information about family members of the former officer. Section 552.117 provides:

Information is excepted from the requirements of section 552.021 if it is information that relates to the home address, home telephone number, or social security number, or that reveals whether the following person has family members:

(1) a current or former official or employee of a governmental body, except as otherwise provided by Section 552.024;

(2) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or a security officer commissioned under Section 51.212, Education Code, regardless of whether the officer complies with Section 552.024; or

(3) an employee of the Texas Department of Criminal Justice, regardless of whether the employee complies with Section 552.024.

You indicate that the former officer who has been accused of sexual assault of the minor is no longer a police officer with the Dallas Police Department. If this former officer is currently a peace officer, security officer, or an employee of the Department of Criminal Justice, as outlined above, his home telephone number, home address, and information revealing he has family members is confidential under section 552.117(2) or (3). If the former police officer elected in writing, prior to the date of the request for information, to withhold information under section 552.117, then his home telephone number, home address, and information revealing that he has family members is protected from disclosure pursuant to subsection (1) of section 552.117. Gov't Code 552.024; Open Records Decision Nos. 530 at 5 (1989), 482 at 4 (1987), 455 (1987). This information is not otherwise protected under section 552.117.

We note that some of the information which is not protected under sections 552.103, 552.108 and 552.117, contains license plate numbers, driver's license numbers, and social security numbers. Driver's license numbers and license plate numbers are confidential under section 552.130. Social security numbers that were obtained or maintained by a governmental body pursuant to any provision of law, enacted on or after October 1, 1990, are confidential pursuant to section 405(c)(2)(C)(viii) of title 42 of the United States Code. These types of information must be withheld from disclosure.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Ruth H. Soucy
Assistant Attorney General
Open Records Division

RHS/ch

Ref: ID# 122675

Enclosures: Submitted documents

cc: Ms. Becky Miller
Special Projects Producer
Fox 4 News
411 North Griffin
Dallas, Texas 75201
(w/o enclosures)


 

Footnotes

1. Since section 261.201(a) makes the information at issue confidential, we need not address your other arguments against disclosure of the documents that pertain to the alleged sexual assault.
 

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