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December 2, 1999

Mr. Charles Karakashian, Jr.
Senior Assistant General Counsel
Texas Department of Public Safety
5805 North Lamar Boulevard - Box 4087
Austin, Texas 78773-0001

OR99-3470

Dear Mr. Karakashian:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 129808.

The Texas Department of Public Safety (the department) received a request for "a list of all cases in which thumb prints submitted by members of the public for identification purposes in obtaining a driver's license or DPS identification cards have been used for other purposes. Specifically, . . . any cases in which the department's thumb print data base has been used by other law enforcement agencies, or by the DPS itself, for criminal identification, missing persons, etc." You claim that the requested information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted representative samples of the information.(1)

Section 552.108, the "law enforcement exception," provides as follows:

Sec. 552.108. EXCEPTION: CERTAIN LAW ENFORCEMENT AND PROSECUTORIAL INFORMATION. (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;

(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

(3) it is information that:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

(B) reflects the mental impressions or legal reasoning of an attorney representing the state.

(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 the requirements of Section 552.021 if:

(1) release of the internal record or notation would interfere with law enforcement or prosecution;

(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; or

(3) the internal record or notation:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

(B) reflects the mental impressions or legal reasoning of an attorney representing the state.

(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.

This statute is designed to protect law enforcement interests. See Open Records Decision No. 252 (1980). Generally, a governmental body claiming an exception from disclosure under section 552.108(a)(1) 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. Ex parte Pruitt, 551 S.W. 2d 706 (Tex. 1977). You have not identified any portion of the requested information that pertains to an ongoing criminal investigation or prosecution or explained how its release would interfere in some way with the detection, investigation, or prosecution of crime. A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has come to some type of final result other than a conviction or deferred adjudication. It is not clear to this office, nor have you explained, how or if the investigations to which the requested information relates actually concluded. (2)

You do not assert that the information at issue was prepared by an attorney representing the state or that it reflects the mental impressions or legal reasoning of an attorney representing the state. Thus, section 552.108(a)(3) is inapplicable to the documents at issue. Since you have not shown the applicability of section 552.108(a) to the records at issue, the requested information may not be withheld on that basis.

We next address the applicability of section 552.108(b). Again, the governmental body claiming section 552.108(b) must reasonably explain, if the information does not supply the explanation on its face, how releasing the information would unduly interfere with law enforcement. Open Records Decision No. 434 at 2-3 (1986). Whether disclosure of particular records will unduly interfere with crime prevention must be decided on a case-by-case basis. Attorney General Opinion MW-381 (1981).

This office has stated that under the statutory predecessor to section 552.108(b), a governmental body may withhold information that would reveal law enforcement techniques. See, e.g., Open Records Decision Nos. 531 (1989) (release of detailed use of force guidelines would unduly interfere with law enforcement), 456 (1987) (release of forms containing information regarding location of off-duty police officers in advance would unduly interfere with law enforcement), 413 (1984) (release of sketch showing security measures to be used at next execution would unduly interfere with law enforcement), 409 (1984) (if information regarding certain burglaries exhibit a pattern that reveals investigative techniques, information is excepted under section 552.108), 341 (1982) (release of certain information from Department of Public Safety would unduly interfere with law enforcement because release would hamper departmental efforts to detect forgeries of drivers' licenses), 252 (1980) (section 552.108 is designed to protect investigative techniques and procedures used in law enforcement), 143 (1976) (disclosure of specific operations or specialized equipment directly related to investigation or detection of crime may be excepted). To claim this exception, however, a governmental body must meet its burden of explaining, if the requested information does not supply the explanation on its face, how and why release of the requested information would interfere with law enforcement and crime prevention. Open Records Decision No. 562 at 10 (1990). Furthermore, generally known policies and techniques may not be withheld under section 552.108. See, e.g., Open Records Decision Nos. 531 at 2-3 (1989) (Penal Code provisions, common-law rules, and constitutional limitations on use of force are not protected under section 552.108), 252 at 3 (1980) (governmental body did not meet burden because it did not indicate why investigative procedures and techniques requested were any different from those commonly known).

You contend that the release of the requested information would alert criminal suspects to law enforcement techniques which may be used to apprehend them. However, you do not explain how the investigative methods apparent from the documents submitted for review are different from methods commonly known. Consequently, we are unable to determine how release of the requested information would unduly interfere with law enforcement. We conclude that the department may not withhold the information under section 552.108(b). Open Records Decision Nos. 531 (1989) and 252 (1980); see also Open Records Letter No. 98-1101 (1998).(3)

Although we have determined that you must release most of the requested information at this time, we note that some of the requested information may be confidential. Section 552.101 of the Government Code 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. Some of the requested information may be excepted from required disclosure under section 552.101 in conjunction with chapter 730 of the Transportation Code and section 2721 of title 18 of the United States Code. Section 2721(a) provides that "a State department of motor vehicles . . . shall not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record." 18 U.S.C. 2721(a). However, personal information may be disclosed "[f]or any other use specifically authorized under the law of the State that holds the record, if such use is related to the operation of a motor vehicle or public safety." 18 U.S.C. 2721(b)(14). Section 552.130 of the Government Code governs the release and use of information obtained from motor vehicle records. Section 552.130 prohibits disclosure of information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state, a motor vehicle title or registration issued by an agency of this state, or a personal identification document issued by an agency of this state, unless disclosure is authorized by chapter 730 of the Transportation Code.

Chapter 730 of the Transportation Code applies to "any agency of this state, or an authorized agent or contractor of an agency of this state, that compiles or maintains motor vehicle records," which include records pertaining to driver's licenses or permits or identification documents. Transp. Code 730.003. The department is such an agency. The stated purpose of chapter 730 is "to implement 18 U.S.C. Chapter 123 and to protect the interest of an individual in the individual's personal privacy by prohibiting the disclosure and use of personal information contained in motor vehicle records, except as authorized by the individual or by law." Transp. Code 730.002. Section 730.004 provides that "an agency may not disclose personal information about any person obtained by the agency in connection with a motor vehicle record," except as required by section 730.005 (in connection with motor vehicle safety and other circumstances not applicable here) or section 730.006 (with the permission of the subject of the information), or as permitted by section 730.007 (disclosure of only name and address, date of birth, and driver's license number for certain governmental, research, and commercial purposes not evident here) or section 730.008 (disclosure if department had provided opportunity for subject of information to prohibit disclosure and, presumably, subject did not elect to prohibit disclosure). Section 730.003(6) defines "personal information" as

information that identifies a person, including an individual's photograph or computerized image, social security number, driver identification number, name, address, but not the zip code, telephone number, and medical or disability information. The term does not include information on vehicle accidents, driving or equipment-related violations, or driver's license or registration status.

The department must withhold all such personal information if it was obtained in connection with a motor vehicle record, unless the subject of the information has both had an opportunity to prohibit disclosure under section 730.008 and has chosen not to prohibit disclosure .(4)

As we have not been informed as to which individuals, if any, have been given an opportunity to prohibit disclosure and have chosen not to prohibit disclosure, we have marked the documents to redact "personal information" as if the subjects had elected to prohibit disclosure or had not had an opportunity to make an election. If any subject has elected not to prohibit disclosure, release of that subject's personal information is discretionary with the department. It is incumbent on the department to ascertain the status of each subject's election under section 730.008.

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,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/jc

Ref: ID# 129808

Encl. Submitted documents

cc: Mr. Lucius Lomax
P. O. Box 547
Austin, Texas 78767
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. 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 that submitted to this office.

2. We acknowledge your claim that "the very act of determining the status of the cases in question places an undue burden on law enforcement and thus interferes with law enforcement's efforts to detect and prosecute criminal activity." However, the court in Houston Chronicle Publishing Company 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), dismissed administrative inconvenience as a"relatively insignificant" factor to be considered. Id. at 186. See also ORD 216 at 3(1978).

3. We notice your concern for other law enforcement agencies at the federal, state, and local levels using these records. We have held that the need of a governmental body, other than the body that is seeking an open records decision, to withhold information under section 552.108 of the Government Code may be a compelling reason to overcome the presumption that the information is public. Open Records Decision 586 (1991). Of course, such other governmental body must demonstrate that need to this office.

4. Because penalties are prescribed for the improper release of confidential information, we note that, in addition to such personal information, the department must withhold any actual thumb or finger images obtained in connection with the issuance of a license, permit, or certificate. Transp. Code 703.010.


 

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