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June 7, 2000

Mr. Jeffrey L. Schrader
Assistant Criminal District Attorney
Civil Section
Bexar County Justice Center
300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

OR2000-2211

Dear Mr. Schrader:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136061.

The Bexar County Sheriff's Office (the "sheriff") received a request for "any and all documents pertaining to" the personnel file of a named deputy sheriff, the sheriff's policy on "moonlighting" by deputies, and the sheriff's policy on "handcuffing then releasing misdemeanor suspects." You have provided for our review information from the personnel file of the named deputy sheriff.(1) You assert that this information is excepted from disclosure under section 552.102 of the Government Code.(2) You have also notified the named deputy of the request by a letter dated March 30, 2000 pursuant to section 552.305 of the Government Code. See Gov't Code 552.305. The deputy responded to the notice and asserts that the information submitted for our review is excepted from disclosure under sections 552.102, 552.117, and 552.119 of the Government Code.(3) We have considered the asserted exceptions and reviewed the submitted information.

Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.- Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for information claimed to be protected under the doctrine of common law privacy as incorporated by section 552.101 of the Government Code. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Therefore, we consider together whether section 552.102 or section 552.101 in conjunction with the common law right of privacy applies to any of the submitted information.(4)

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 and constitutional privacy. Information must be withheld from the public as implicating the common law right to privacy when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Id. at 685; Open Records Decision No. 611 at 1 (1992).

The constitutional right to privacy protects two interests. Open Records Decision No. 600 at 4 (1992) (citing Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985), cert. denied, 474 U.S. 1062 (1986)). The first is the interest in independence in making certain important decisions related to the "zones of privacy" recognized by the United States Supreme Court. Open Records Decision No. 600 at 4 (1992). The zones of privacy recognized by the United States Supreme Court are matters pertaining to marriage, procreation, contraception, family relationships, child rearing, and education. See id.

The second interest is the interest in avoiding disclosure of personal matters. The test for whether information may be publicly disclosed without violating constitutional privacy rights involves a balancing of the individual's privacy interests against the public's need to know information of public concern. See Open Records Decision No. 455 at 5-7 (1987) (citing Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981)). The scope of information considered private under the constitutional doctrine is far narrower than that under the common law; the material must concern the "most intimate aspects of human affairs." See id. at 5 (1987) (citing Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir. 1985), cert. denied, 474 U.S. 1062 (1986).

This office has found that the following types of information are excepted from required public disclosure under the constitutional or common law right to privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps), personal financial information not relating to the financial transaction between an individual and a governmental body, see Open Records Decision Nos. 600 (1992), 545 (1990), and information concerning the intimate relations between individuals and their family members, see Open Records Decision No. 470 (1987). Upon careful review of the submitted documents, we have marked certain information which implicates the right to privacy of an individual.(5) You must redact the information we have marked from these documents prior to their release. We find that the remaining submitted information is not protected by a right of privacy and may not be withheld on that basis. See Open Records Decision Nos. 484 (1987) (public's interest in knowing how police departments resolve complaints against police officer ordinarily outweighs officer's privacy interest), 470 (1987) (public employee's job performance does not generally constitute his private affairs), 455 (1987) (public employee's job performances or abilities generally not protected by privacy), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees).

Information on many of the submitted documents must be withheld under section 552.117(2) of the Government Code. Section 552.117(2) excepts from public disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members. We have marked the information which you must withhold under this provision.

Certain information must be withheld under section 552.119 of the Government Code. Section 552.119(a), with exceptions that have not been shown to apply here, prohibits the release of photographs that depict peace officers. Thus, you must withhold any photograph of peace officers under section 552.119(a) unless the peace officer has given written consent to the disclosure of the photograph. See Gov't Code 552.119(a), (b). We have marked one document that contains a photograph of the named peace officer. Absent written consent from the officer, you must not release this information.

In addition to the asserted exceptions, the submitted documents also contain information you must withhold under section 552.130 of the Government Code. Section 552.130(a) excepts from disclosure information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. We have marked the information that you must not release pursuant to this provision.

In summary, you must redact from the submitted documents the specific information we have marked.(6) You must release to the requestor the remaining 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 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,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/pr

Ref: ID# 136061

Encl. Submitted documents

cc: Mr. John Boyce
3414 Robinson Avenue
Austin, Texas 78722
(w/o enclosures)

cc: Deputy Robert W. Falcon
Bexar County Sheriff's Office
200 North. Comal
San Antonio, Texas 78207
(w/o enclosures)


 

Footnotes

1. You did not submit for our review information that is responsive to the requests for policies on "moonlighting" and "handcuffing then releasing misdemeanor suspects." You also make no arguments against the release of this information. We therefore assume that you have released this information to the requestor. Gov't Code 552.301, .302.

2. You have marked with green flags the documents that you assert contain "confidential personal information" of the named deputy. As discussed below, we agree that most of the documents you have marked contain some information that is excepted from required disclosure. As to the remaining documents, we have marked with red and yellow flags those documents that contain information that is excepted from required disclosure. We have marked for redaction the specific information at issue. You must redact from the documents the information we have marked prior to their release.

3. The deputy states: "I have been and continue to be the target of documented Mexican Mafia death threats. Accordingly, a compelling reason exists to withhold the release of the requested information because the information sought implicates individual privacy and property interest [sic]." The deputy does not identify the information to which this "compelling reason" assertion pertains, nor is it further explained how public release of any of the submitted information might endanger the officer. We thus find that no compelling demonstration has been made to permit withholding of the information, other than that information which already must be withheld under an applicable exception.

4. The Public Information Act prohibits the release of confidential information. Gov't Code 552.352. Because the release of confidential information constitutes a misdemeanor, the attorney general will raise section 552.101 on behalf of a governmental body, although the attorney general will ordinarily not raise an exception that a governmental body has failed to claim. Open Records Decision 455 at 3 (1987).

5. We have marked the documents at issue with yellow flags, and we have marked the specific information that you must redact.

6. All of the documents that contain information that must be redacted are marked with green, yellow, or red flags. You placed the green flags on the documents. We have determined that some of the green flagged documents do not contain any information that is excepted from required disclosure. Thus, although all of the green flagged documents do not contain redactions, all of the documents that require redaction are marked with flags.
 

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