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February 18, 2000

Mr. Sim Goodall
Assistant City Attorney
Mail Stop 04-0200
Police Legal Advisor
P.O. Box 1065
Arlington, Texas 76004-1065

OR2000-0627

Dear Mr. Goodall:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131822.

The City of Arlington (the "city") received a request for all information related to a specific shooting investigation. You indicate that you have released to the requestor a videotape and excerpts from the 911 call related to this matter. You claim that the remaining information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Initially, you indicate that the submitted information contains an autopsy report. We note that a second autopsy report is also included in the submitted documents. Section 11 of article 49.25 of the Code of Criminal Procedure requires that autopsy reports be made available to the public. Open Records Decision No. 525 (1989). Section 11 has been amended to provide that [t]he records [of an autopsy] are subject to required public disclosure in accordance with Chapter 552, Government Code, except that a photograph or x-ray of a body taken during an autopsy is excepted from required public disclosure in accordance with Chapter 552, Government Code, but is subject to disclosure:

(1) under a subpoena or authority of other law; or

(2) if the photograph or x-ray is of the body of a person who died while in the custody of law enforcement.

Act of May 22, 1999, 76th Leg., R.S., ch 607, 2. This amendment took effect on September 1, 1999. Id. 3. We conclude that the city must release to the requestor the autopsy reports excluding pictures taken during the autopsy.

The submitted documents also include a custodial death report. This office has concluded that Part I of a custodial death report is public information in accordance with article 49.18(b) of the Code of Criminal Procedure. See Open Records Decision No. 521 (1989). Parts II through V of the report are not public information. See id. The city must release Part I of the custodial death report to the requestor.

You indicate that the investigation of the shooting incident is complete. It is important to note that section 552.022 of the Government Code now makes certain information expressly public, and therefore not subject to discretionary exceptions to disclosure. One such category of expressly public information under section 552.022 is "a completed report, audit evaluation, or investigation made of, for, or by a governmental body, except as provided by [s]ection 552.108[.]" Gov't Code 552.022(a)(1). This office has concluded that Information specifically made public by statute is not excepted from disclosure under section 552.103. See Open Records Decision Nos. 161 (1977), 146 (1976). Additionally, even absent the application of section 552.022, we do not believe that the city has met its burden of showing that litigation was reasonably anticipated in this matter on the date that the city received the request for information. See Gov't Code 552.103(c) (litigation must be pending or reasonably anticipated on date governmental body receives request). To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party.(1) However, the fact that a potential opposing party has hired an attorney who makes a request for information does not establish that litigation is reasonably anticipated. Open Records Decision No. 361 (1983). The requestor is an attorney representing the family of the deceased individual. You have provided letters from the requestor to the city. However, the requestor did not specifically threaten to sue the city. Therefore, you have not shown that litigation is reasonably anticipated. Accordingly, you may not withhold the submitted information under section 552.103. We will now address whether any of the requested information is confidential by law.

Portions of the information are protected from disclosure pursuant to section 552.101 of the Government Code. Section 552.101 excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."(2) Section 552.101 encompasses information which is protected by other statutes. The submitted information contains a record of juvenile conduct which took place in 1989. Since the conduct took place prior to January 1, 1996, the confidentiality of the information is governed by the law in effect at that time, section 51.14(d) of the Family Code.(3) Section 51.14 provided in pertinent part:

(d) Except as provided by Article 15.27, Code of Criminal Procedure, and except for files and records relating to a charge for which a child is transferred under Section 54.02 of this code to a criminal court for prosecution, the law-enforcement files and records [concerning a child] are not open to public inspection nor may their contents be disclosed to the public.

Act of May 22, 1993, 73d Leg., R.S., ch. 461, 3, 1993 Tex. Gen. Laws 1850, 1852, repealed by Act of May 27, 1995, 74th Leg., R.S., ch. 262, 100, 1995 Tex. Gen Laws 2517, 2590. In Open Records Decision No. 181 at 2 (1977), this office held that former section 51.14(d) excepts police reports which identify juveniles or furnish a basis for their identification. See also Open Records Decision No. 394 at 4-5 (1983) (applying former Family Code 51.14(d) to "police blotter" and related information). You do not indicate that the report at issue here relates to charges for which the city transferred the juvenile under section 54.02 of the Family Code(4) to a criminal court for prosecution, or that article 15.27 of the Code of Criminal Procedure(5) applies. Moreover, you do not indicate that any of the exceptions to former section 51.14(d) apply to the requestor. See Act of May 22, 1993, 73d Leg., R.S., ch. 461, 3, 1993 Tex. Gen. Laws 1850, 1852 (repealed 1995) (formerly Fam. Code 51.14(d)(1), (2), (3)). Accordingly, we conclude that the city must withhold the offense report in its entirety under section 552.101 of the Government Code in conjunction with section 51.14(d) of the Family Code.

Additionally, among the documents submitted for our review is information that appears to contain criminal history record information ("CHRI") generated by the Texas Crime Information Center ("TCIC") or the National Crime Information Center ("NCIC"). The dissemination of CHRI obtained from the NCIC network is limited by federal law. See 28 C.F.R. 20.1; Open Records Decision No. 565 at 10-12 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Open Records Decision No. 565 at 10-12 (1990). Sections 411.083(b)(1) and 411.089(a) of the Government Code authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release the information except to another criminal justice agency for a criminal justice purpose. Gov't. Code 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. 411.090-.127. Thus, any CHRI generated by the federal government or another state may not be made available to the requestor except in accordance with federal regulations, see Open Records Decision No. 565 (1990), and any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. We have marked the criminal history information that must be withheld under section 552.101.

We have identified additional information which is also protected under section 552.101 of the Government Code. As stated above, section 552.101 encompasses the doctrine of common law privacy. For information to be protected from public disclosure under the common law right of privacy, the information must meet the criteria set out in Industrial Foundation v. Texas Industrial Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The court stated that

information . . . is excepted from mandatory disclosure under Section 3(a)(1) as information deemed confidential by law if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public.

540 S.W.2d at 685; Open Records Decision No. 142 at 4 (1976) (construing statutory predecessor to Gov't Code 552.101). In Industrial Foundation, the Texas Supreme Court considered intimate and embarrassing information such as that relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683; see also Open Records Decision Nos. 470 (1987) (concluding that fact that a person broke out in hives as a result of severe emotional distress is excepted by common law privacy), 455 (1987) (concluding that kinds of prescription drugs a person is taking are protected by common law privacy), 343 (1982) (concluding that information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/ seizures, or emotional/mental distress is protected by common law privacy). We have marked the information which the city must withhold under section 552.101 in conjunction with the common law right to privacy.

We note that the submitted documents also contain information regarding a peace officer that is excepted from disclosure pursuant to section 552.117(2) of the Government Code. Section 552.117(2) excepts from public disclosure information that reveals a peace officer's home address, home telephone number, social security number, and whether the officer has family members. "Peace officer" is defined by article 2.12 of the Code of Criminal Procedure. The city must withhold the home addresses, home telephone numbers, social security numbers and family information of its officers under section 552.117(2) regardless of whether those officers elected under section 552.024 to have this information withheld. For your convenience, we have marked the information which must be withheld under section 552.117(2).

Finally, the information contains social security numbers and drivers' license numbers. The social security numbers contained in the information may be confidential if they were obtained or are maintained by the city pursuant to any provision of law, enacted on or after October 1, 1990. 42 U.S.C. 405(c)(2)(C)(vii); see Open Records Decision No. 622 (1994). In addition, the city must withhold the drivers' license or vehicle identification numbers under section 552.130 as they are information that relates to a motor vehicle operator's or driver's license issued by an agency of this state. We note, however, that the submitted documents include vehicular information belonging to a deceased individual. We believe section 552.130 is intended to protect the privacy of the subject of the information. 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 therefore determine that the information described by section 552.130(a) that relates to the deceased individual is not excepted from disclosure and must be released. However, the information protected by section 552.130 relating to living individuals must be withheld. We have marked the information excepted by section 552.130.

In summary, section 552.022(a)(1) of the Government Code makes certain information, such as completed investigations done of, for, or by a governmental body expressly public. Information expressly made public by section 552.022 may only be withheld if the information is otherwise confidential by law. The city asserts that the information is excepted by section 552.103 of the Government Code, which is a discretionary exception to required disclosure. Therefore, the city may not withhold the information pursuant to section 552.103 of the Government Code. The city must release the autopsy reports with the exception of pictures taken during the autopsy, and part I custodial death report. However, the city must withhold the information relating to the juvenile crime and the criminal history information, and the home address, phone number, and family member information related to a peace officer. The city must also withhold the Texas driver's license numbers or Texas identification card number, along with any license plate numbers and vehicle identification numbers belonging to living individuals. Additionally, the city may be required to withhold the social security numbers contained in the submitted information. The city may not withhold any other information, and must therefore release the remaining information, including the 911 call tape, to the requestor.

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 877/6736839. 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,

Carla Gay Dickson
Assistant Attorney General
Open Records Division
CGD/ch
Ref: ID# 131822
Encl. Marked documents

cc: Mr. Craig Crockett
McKnight, DeHart & Crockett
1320 South University Drive, Suite 804
Fort Worth, Texas 76107
(w/o enclosures)


 

Footnotes

1. In addition, this office has concluded that litigation was reasonably anticipated when the potential opposing party took the following objective steps toward litigation: filed a complaint with the Equal Employment Opportunity Commission, see Open Records Decision No. 336 (1982); hired an attorney who made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open Records Decision No. 346 (1982); and threatened to sue on several occasions and hired an attorney, see Open Records Decision No. 288 (1981).

2. 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).

3. Section 51.14(d) of the Family Code was repealed by the Seventy-fourth legislature. Act of May 27, 1995, 74th Leg., R.S., ch. 262, 100, 1995 Tex. Gen. Laws 2517, 2590 (current version at Family Code 58.007 et seq.). However, the repealing bill provides that "[c]onduct that occurs before January 1, 1996, is governed by the law in effect at the time the conduct occurred, and that law is continued in effect for that purpose." Id. 106, 1995 Tex. Gen. Laws at 2591; Open Records Decision No. 644 at 5(1996).

4. Act of May 25, 1973, 63d Leg., R.S., ch. 544, 1, 1973 Tex. Gen. Laws 1460, 1476-77, amended by Act of May 19, 1975, 64th Leg., R.S., ch. 693, 15-16, 1975 Tex. Gen. Laws 2152, 2156-57 (adding subsecs. (m), (j), (k), (l)), amended by Act of May 8, 1987, 70th Leg., R.S., ch. 140, 1-3, 1987 Tex. Gen. Laws 309 (amending subsecs. (a), (h), (j)).

5. Act of May 22, 1993, 73d Leg., R.S., ch. 461, 1, 1993 Tex. Gen. Laws 1850-51.
 

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