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January 5, 2000

Mr. Tommy W. Lueders
Assistant City Attorney
City of Midland
P.O. Box 1152
Midland, Texas 79702-1152

OR2000-0036

Dear Mr. Lueders:

You ask whether certain information is subject to required public disclosure under the Open Records Act, chapter 552 of the Government Code. Your request was assigned ID# 131779.

The City of Midland (the "city") received a request for all police reports for a certain person for the last five years. You claim that portions of the information are excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses common-law privacy. 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). In this instance, the requestor asks for all information concerning a certain person. In this case, we believe that the individual's right to privacy has been implicated. Thus, where the named individual is a possible suspect, we conclude that you must withhold this information under section 552.101 of the Government Code. See id. Exhibits B, C, D, E, F, G, H, L, M, O, P, and Q are police reports where the named individual was arrested, cited or a suspect. Thus, you must withhold these exhibits from disclosure.

With regard to Exhibit I, you assert that it is excepted from disclosure under section 58.007(c) of the Family Code. This office has concluded that section 58.007(c) of the Family Code, as enacted by the Seventy-fourth Legislature, does not make juvenile law enforcement records relating to conduct that occurred on or after January 1, 1996 confidential. Open Records Decision No. 644 (1996). The Seventy-fifth Legislature, however, amended section 58.007 to make juvenile law enforcement records confidential, effective September 1, 1997. However, the Legislature chose not to make this most recent amendment retroactive in application. Consequently, law enforcement records pertaining to juvenile conduct that occurred between January 1, 1996 and September 1, 1997 are not subject to the confidentiality provisions of either the former section 51.14(d) or the current section 58.007 of the Family Code. Therefore, we conclude that Exhibit I, which concerns delinquent conduct that occurred on July 26, 1996, is not confidential under section 58.007(c) of the Family Code.

You also assert that Exhibits I, J, K, and N are excepted from disclosure under section 552.108(a)(2). Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. You assert that Exhibits I, J, K, and N pertain to investigations that concluded in a result other than conviction or deferred adjudication. Therefore, we agree that section 552.108(a)(2) is applicable and you may withhold Exhibits I, J, K, and N.

However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. Gov't Code 552.108(c); Open Records Decision No. 127 (1976). We believe such basic information refers to the information held to be public in Houston Chronicle Publishing 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).(1) Thus, with the exception of the basic front page offense and arrest information, you may withhold the requested information from disclosure based on section 552.108(a)(2).

Although you may withhold driver's license numbers under section 552.108(a)(2), you correctly assert that information relating to a driver's license issued by an agency of this state is excepted from disclosure under section 552.130(a). Section 552.130(a) also excepts from disclosure a motor vehicle title or registration issued by an agency of this state which includes license plate numbers and VIN numbers. Further, social security numbers may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id.

In summary, you must withhold Exhibits B, C, D, E, F, G, H, L, M, O, P, and Q from disclosure under section 552.101 in conjunction with common-law privacy. With the exception of basic information, you may withhold Exhibits I, J, K, and N from disclosure under section 552.108(a)(2). We note that you have the discretion to release all or part of the remaining information that is not otherwise confidential by law. Gov't Code 552.007.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This 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 this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this 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 this 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 this 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 this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this 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 this 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); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they 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.

Sincerely,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/ch

Ref: ID# 131779

Encl. Submitted documents; copy of Summary of Open Records Decision No. 127

cc: Ms. Romona Zarate
1417 West County Road 116
Midland, Texas 79706
(w/o enclosures)


 

Footnotes

1. The content of the information determines whether it must be released in compliance with Houston Chronicle, not its literal location on the first page of an offense report. Open Records Decision No. 127 (1976) contains a summary of the types of information deemed public by Houston Chronicle. We have enclosed a copy of Open Records Decision No. 127 for your review.
 

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