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April 23, 1999

Captain John Bruce
Frisco Police Department
8750 McKinney Road, Ste 500
Frisco, Texas 75034

OR99-1100

Dear Captain Bruce:

You ask this office to reconsider our ruling in Open Records Letter No. 99-0665 (1999). Your request was assigned ID# 124591.

The Frisco Police Department (the "department") received a request for documents relating to the death of a named individual. In Open Records Letter No. 99-0665, this office concluded that the department had failed to raise the applicable exceptions within the statutory ten business day period. See Gov't Code 552.301. You now assert that the information is protected from disclosure by section 552.101 of the Government Code.

Section 552.101 excepts from required public disclosure information that is considered confidential by law, either constitutional, statutory, or by judicial decision. Information may be withheld under section 552.101 in conjunction with the common-law right to privacy only if the information is highly intimate or embarrassing and it is of no 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).

Section 552.101 also excepts information that is confidential under constitutional privacy. Constitutional privacy consists of two interrelated types of privacy: (1) the right to make certain kinds of decisions independently, and (2) an individual's interest in avoiding disclosure of personal matters. Open Records Decision No. 455 at 4 (1987). The first type protects an individual's autonomy within "zones of privacy," which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. Id. The second type of constitutional privacy requires a balancing between the individual's privacy interests and the public's need to know information of public concern. Id.

However, a deceased person has no right of privacy, and Texas law does not permit the family of a deceased person to maintain an action for the deceased's right of privacy because that right is personal. Open Records Decision No. 432 (1985), citing Justice v. Belo Broadcasting Corp., 472 F. Supp. 145 (N.D. Tex. 1979); Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984); see Moore v. Charles B. Pierce Film Enterprises, Inc., 589 S.W.2d 489 (Tex. Civ. App.--Texarkana 1979, writ ref'd n.r.e.) (Texas does not recognize relational or derivative right of privacy). We note, however, that the spouse of the deceased individual has a privacy interest in some of the submitted details. We have marked the information that is protected by common-law privacy. The department must release the remaining information immediately.

If you have any questions about this ruling, please contact our office.

Sincerely,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/ch

Ref.: ID# 124591

encl. Marked documents

cc: Ms. Juliana Barbassa
Dallas Observer
P.O. Box 1990289
Dallas, Texas 75218

(w/o enclosures)


 

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