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September 17, 1999

Mr. Miles K. Risley
Senior Assistant City Attorney
Legal Department
City of Victoria
P.O. Box 1758
Victoria, Texas 77902-1758

OR99-2605

Dear Mr. Risley:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 127677.

The City of Victoria (the "city") received a request for "[a]ny and all records involving" certain persons. You claim that the requested information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

The Office of the Attorney General will raise mandatory exceptions like sections 552.101 and 552.117 on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information protected by the common-law right of privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). We note at the outset that to the extent the requestor is asking for any unspecified records in which a named individual is identified as a "suspect," the requestor, in essence, is asking the city to compile that individual's criminal history. 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) (concluding that federal regulations which limit access to criminal history record information that states obtain from the federal government or other states recognize privacy interest in such information). Similarly, open records decisions issued by this office acknowledge this privacy interest. See Open Records Decision Nos. 616 (1993), 565 (1990). Therefore, to the extent that there is criminal history information, the city must withhold the referenced individual's criminal history information pursuant to section 552.101. We have marked the information that you must withhold.

With respect to documents which do not list the named persons as suspects, section 552.108 of the Government Code provides:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if:

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

* * *

(c) This section does not except from the requirements of Section 552.021 information that is basic information about an arrested person, an arrest, or a crime.

Gov't Code 552.108.

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)(1), (b)(1), .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).

You explain that the requested records concern cases that are being prosecuted or are being investigated for possible presentation to the Victoria County District Attorney. Therefore, you contend that section 552.108(a)(1) excepts these reports from public disclosure. Except for offense report number 9617980, we find that you have shown that release of the requested information would interfere with the detection, investigation or prosecution of crime. See 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) (court delineates law enforcement interests that are present in active cases); Open Records Decision No. 216 (1978). We therefore conclude that section 552.108(a)(1) of the Government Code excepts these requested records from required public disclosure.

With respect to these reports, however, we note that information normally found on the front page of an offense report is generally considered public. 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, you must release the types of information that are considered to be front page offense report information, even if this information is not actually located on the front page of the offense report. Gov't Code 552.108(c); see Open Records Decision No. 127 (1976) (summarizing the types of information deemed public by Houston Chronicle).(1)

As for offense report number 9617980, although you assert that the case is currently being investigated, the records indicate that the victim wishes to withdraw the complaint, and the prosecuting attorney declined the charges. Based on all the information presented, we conclude that you have not sufficiently explained how release of this information would interfere with the detection, investigation or prosecution of crime. Therefore, you may not withhold this information under section 552.108(a)(1) of the Government Code.

You also argue that section 552.103 excepts offense report number 9617980 from public disclosure. When asserting section 552.103, a governmental body must establish that (1) litigation is either pending or reasonably anticipated, and (2) the requested information relates to that litigation. See 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).

In this instance, the report indicates that the prosecuting attorney has declined to press charges. Thus, you have not shown that offense report number 9617980 relates to litigation that is either reasonably anticipated or pending. Therefore, you may not withhold offense report number 9617980 under section 552.103(a). However, you must withhold the social security numbers contained in the report under section 552.101 of the act in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if they were obtained or are maintained by the city pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994).

Finally, with respect to offense report number 9815620, pursuant to section 552.301(b), a governmental body is required to submit to this office (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, and (3) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. You have neither asserted any exceptions to withhold offense report 9815620 nor submitted the information to this office. Therefore, the information in offense report number 9815620 is presumed to be public information. Information that is presumed public must be released unless a governmental body demonstrates a compelling interest to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code 552.302); Open Records Decision No. 319 (1982). As you have not shown such a compelling interest, this information is presumed to be public and must be released.

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,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL\nc

Ref: ID# 127677

Encl: Marked documents

cc: Mr. Steven Paul Dirksen
Route 2, Box 138
Magnolia Beach, Texas 77979
(w/o enclosures)


 

Footnotes

1. Generally, basic information may not be withheld from public disclosure under section 552.103 of the Government Code. Open Records Decision No. 362 (1983).
 

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