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July 5, 2000

Mr. Miles K. Risley
Senior Assistant City Attorney
Legal Department
City of Victoria
P.O. Box 1758
Victoria, Texas 77902-1758

OR2000-2520

Dear Mr. Risley:

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# 136745.

The City of Victoria (the "city") received a request for information regarding a named individual. Specifically, the requestor asks for accident reports or related information and any other Victoria police department records related to the individual which are not currently part of an ongoing investigation. You state you have released some of the requested information, but contend that a portion is excepted from public disclosure pursuant to section 552.108 of the Government Code and pursuant to section 552.101 in conjunction with section 58.007 of the Texas Family Code. We have considered the exceptions you claim and reviewed the submitted information.

First, you claim that the general offense report for case no. 248-00 is excepted from public disclosure. We note, however, that you have listed that offense report as one that has been released to the requestor. Therefore, as this document has already been released, your arguments against its disclosure are invalid.

We observe that the requestor has asked for any other Victoria police department records related to the individual which are not currently part of an ongoing investigation. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information protected by the common law right of privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976). 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) (concluding that federal regulations limit access to, and recognize privacy interests in, criminal history record information that states obtain from the federal government or other states). Similarly, open records decisions issued by this office acknowledge this privacy interest. See Open Records Decision Nos. 616 (1993), 565 (1990). In the present case, the requestor is asking for unspecified documents in which the named individual is identified. As such, the requestor is essentially asking for a compilation of criminal history information for the individual. Thus, we find that the named individual's right of privacy has been implicated to the extent the individual is identified as a suspect. Therefore, all compilations of the referenced individual's criminal history, wherein the individual is identified as a suspect, must be withheld pursuant to section 552.101. For your reference, we have marked the documents that must be withheld pursuant to section 552.101.

You have submitted documents that you argue are excepted from disclosure pursuant to section 552.101 in conjunction with section 58.007 of the Texas Family Code. Section 552.101 encompasses confidentiality provisions such as Family Code section 58.007. Section 58.007(c) provides that "law enforcement records and files concerning a child . . . may not be disclosed to the public[.]" Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007.

We conclude that a portion of the submitted documents are law enforcement records or files concerning juvenile conduct. It does not appear that any of the exceptions in section 58.007 apply; therefore, the information is confidential pursuant to section 58.007(c) of the Family Code. The documents must be withheld, in their entirety, pursuant to section 552.101 in conjunction with Family Code section 58.007(c). We have marked these documents for your reference.

Some of the documents for which you have asserted a section 58.007(c) exception are not excepted under that section because the documents relate to offenses that were not committed by a juvenile. Family Code section 51.02(2) defines "child" as a person who is

(A) ten years of age or older and under 17 years of age; or

(B) 17 years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.

As the relevant documents involve persons who were either under the age of ten or age 17 or older on the date of the offense, the information is not excepted from public disclosure pursuant to Family Code section 58.007(c). Because you have claimed no other exception, the documents must be released. We have marked the relevant documents for your reference.

The submitted documents include information that is confidential under section 552.101 and common law privacy. As stated above, section 552.101 excepts from required public disclosure "information that is confidential by law, either constitutional, statutory, or by judicial decision." Under common law privacy, private facts about an individual are excepted from disclosure. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). Information may be withheld from the public 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 type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information 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. Id. at 683. Additionally, this office has found that information regarding some kinds of medical information or information indicating disabilities or specific illnesses is also excepted from required public disclosure under common law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). We have marked the information that you must withhold as information protected by common law privacy.

The submitted documents also contain an offense report which is excepted under section 552.101 in conjunction with Texas Family Code section 261.201. Section 261.201 provides as follows:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this Code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report . . . .

We have marked the document which must be withheld, in its entirety, pursuant to section 261.201.

Finally, we address your arguments under section 552.108. You argue that some of the submitted information is excepted from public disclosure pursuant to section 552.108, and you have provided a list of those documents. You do not state which subsection of section 552.108 applies, but you inform us that the cases which these documents relate to are currently pending. We initially note that the issue of disclosure of some of these documents has already been addressed above. As to the remaining documents, we call your attention to the requestor's specific request; the requestor has asked for documents "which are not currently a part of an ongoing investigation." Because the remaining documents are currently under investigation, as is reflected by your representation and notations within the documents, we conclude that the documents may be withheld as non-responsive to the request. For your reference we have marked the relevant documents.

We also note that some of the documents we have marked to be released contain information which is confidential. Section 552.130 of the Government Code governs the release and use of motor vehicle record information. Section 552.130 provides in pertinent part:

(a) Information is excepted from [required public disclosure] if the information relates to:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state;

(2) a motor vehicle title or registration issued by an agency of this state; or

(3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document.

The responsive document contains both a driver's license number and a vehicle identification number. Therefore, this information must be withheld pursuant to section 552.130. The information marked to be released also contains a social security number. The social security number is confidential if it was obtained or is maintained by the city pursuant to any provision of law enacted on or after October 1, 1990. See 42 U.S.C. 405(c)(2)(C)(viii); Open Records Decision No. 622 (1994). For your reference we have marked the information you must redact prior to the release of the documents.

This letter ruling is limited to the particular records at issue in this request and 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,

Julie Reagan Watson
Assistant Attorney General
Open Records Division

JRW/pr

Ref: ID# 136745

Encl. Submitted documents

cc: Mr. Mark Rains
Mark C. Rains & Associates
P.O. Box 2055
Victoria, Texas 77902
(w/o enclosures)


 

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