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April 18, 2000

Mr. Keith Stretcher
City Attorney
City of Midland
Post Office Box 1152
Midland, Texas 79702-1152

OR2000-1551

Dear Mr. Stretcher:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 135666.

The City of Midland received a request for information regarding a police report for case no. 9302170029; this report relates to a sexual assault. The responsive information includes an offense report and a tape recording of the victim's statement. You assert that the requested information is excepted from disclosure pursuant to subsection 552.108(a)(2) of the Government Code and section 552.101 of the Government Code in conjunction with common law privacy and the informer's privilege. You also contend that the social security numbers contained in the report are excepted from disclosure under section 552.101. We have considered your arguments and reviewed the information submitted.

Section 552.108(a)(2) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . 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." You explain that the criminal investigation to which the requested information relates concluded in a result other than conviction or deferred adjudication. Based upon this representation and a review of the responsive information, we find that the tape recording and portions of the offense report are excepted from disclosure pursuant to section 552.108(a)(2).

However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. See Gov't Code 552.108(c). 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). Ordinarily, information that is considered to be front page offense report information must be released, even if this information is not actually located on the front page of the requested report. You assert, however, that the report reveals identifiers of the complainant, and that such information is excepted from disclosure pursuant to privacy rights accorded under section 552.101.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses common law privacy and excepts from disclosure private facts about an individual. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). Information is excepted from required public disclosure by a common law right of privacy if the information (1) contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. See id. at 685; Open Records Decision No. 611 at 1 (1992).

This office has found that, in general, section 552.101 does not except from public disclosure the names of crime victims. See Open Records Decision No. 409 at 2 (1984). However, we have concluded that the names of victims of sexual assault and child victims of sexual abuse and serious sexual offenses are excepted from public disclosure under section 552.101 and common law privacy grounds. See Open Records Decision No. 339 at 2 (1982). In the instant case, the police report pertains to a sexual assault in which the victim did not use a pseudonym. We believe that the requirements of common law privacy may be satisfied by redacting, prior to release, identifying information such as the victim's name (if given),(1) work information, the names of others such as family members through whom the victim could be identified, the victim's and such other individuals' addresses and telephone numbers, and the locations of the crimes if they coincide with the victim's address or otherwise tend to specifically identify the victim. We have marked the information that you must withhold under common law privacy.(2) Otherwise, with the exception of the identifying information discussed above, all other front page offense report information must be released.

Social security numbers are considered to be types of information excepted under section 552.108(a)(2). Therefore, we need not address your additional claims regarding that information.

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 Dep't 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,

Julie Reagan Watson
Assistant Attorney General
Open Records Division

JRW/cwt

Ref: ID# 135666

Encl. Submitted documents

cc: Mr. Louis J. Fohn
Attorney at Law
716 S. Koenigheim
San Angelo, Texas 76903
(w/o enclosures)


 

Footnotes

1. Note that pseudonyms are not identifying information and therefore should be released.

2. Because common law privacy protects the complainant's identifying information, we need not address your claim under the informer's privilege.
 

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