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July 28, 2000

Ms. Lamis A. Safa
Assistant City Attorney
City of Houston
Legal Department
P.O. Box 1562
Houston, Texas 77251-1562

OR2000-2860

Dear Ms. Safa:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137840.

The City of Houston (the "city") received two requests for information. The first, dated May 18, 2000, is for six specific incident reports and any other incident reports the city has for a named individual. The second, dated June 1, 2000 is for the same six specific incident reports and any other incident reports that the city has for that same individual as well as another specified individual. You claim that Exhibit 2, responsive to the first request, is excepted from disclosure under section 552.101 of the Government Code, and that Exhibits 3 and 4, responsive to the second request, are excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

First, section 552.301(b) of the Government Code provides that a governmental body must ask the attorney general for a decision as to whether requested documents must be disclosed and state the exceptions that apply not later than the tenth business day after the date of receiving the written request. We note that of both of the requests you submitted to this office contain a request for the same six incident reports. The city, in its initial request for a ruling from this office, only claims section 552.101 to except the six specific reports from public disclosure. In the city's second request for a ruling from this office, you claim sections 552.101 and 552.108 to except the reports from public disclosure. The city asserted its section 552.108 claim on June 6, 2000, more than ten business days after its receipt of the first request for information May 18, 2000. Thus, the city failed to timely assert its section 552.108 claim in accordance with section 552.301(b).

When a governmental body fails to state the exceptions that apply within ten business days of receiving a request for information, the information at issue is presumed public. Gov't Code 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App. -- Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The governmental body must show a compelling interest to withhold the information to overcome this presumption. Gov't Code 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App. -- Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.-Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). Normally, a compelling interest is that some other source of law makes the information confidential or that third party interests are at stake. Accordingly, we will examine the exceptions you raise to determine if a compelling interest exists in order to withhold the six specific incident reports from public disclosure.

In your second request, you contend that section 552.108(a)(2) excepts Exhibit 3 from public disclosure. We note that Exhibit 3 contains five of the six specified incident reports contained in both requests. However, we note that section 552.108 is a discretionary exception. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 592 at 8 (1991) (governmental body may waive section 552.104, information relating to competition or bidding), 549 at 6 (1990) (governmental body may waive informer's privilege), 522 at 4 (1989) ( discretionary exceptions in general). Discretionary exceptions therefore do not constitute "other law" that makes information confidential. Consequently, a governmental body waives a discretionary exception by failing timely to invoke it. See Open Records Decision Nos. 630 (1994), 586 (1991), 552 (1990). Therefore, because section 552.108 may be waived, we conclude that section 552.108 does not constitute a compelling reason to overcome the presumption that the six specific incident reports are public. Accordingly, the city may not withhold the specified reports under section 552.108.

Next, you assert that the Exhibits 2, 3, and 4 are confidential pursuant to section 552.101. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."Section 552.101 also encompasses the common law right to privacy. As noted above, this office has held that a compelling reason exists to withhold information when the information is confidential by another source of law or implicates the privacy interest of a third party. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Accordingly, we will consider the city's argument for withholding Exhibits 2, 3 and 4 pursuant to section 552.101.

Section 552.101 also encompasses the common law right to 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) (concluding that federal regulations which limit access to criminal history record information that states obtain from the federal government or other states recognize privacy interest in such information). Similarly, open records decisions issued by this office acknowledge this privacy interest. See Open Records Decision Nos. 616 (1993), 565 (1990).

After reviewing both requests, we conclude that the portions of the requests asking for any incident reports concerning the named person are requests for a compilation of the named individual's criminal history. We conclude that such information that identifies the named individual as an arrestee, criminal suspect, or defendant must be withheld under section 552.101 of the Government Code and Reporter's Committee. We have marked the portions of Exhibits 2 and 3 that must be withheld pursuant to section 552.101 and the common law right to privacy.

However, we note that because the remaining portions of the requests seek specific incident reports rather than compiled information about the named individual, they do not fall within the parameters of Reporters Committee. Therefore, section 552.101 and the common law right to privacy are inapplicable to these six specific incident reports. Consequently, except for the information discussed below, these reports must be released in their entirety.

The incident reports to be released contain social security numbers. Social security numbers may be withheld in some circumstances under section 552.101 of the Government Code. A social security number or "related record" 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. We have no basis for concluding that the social security numbers in the records here are confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure on the basis of that federal provision. We caution, however, that section 552.353 of the Public Information Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained pursuant to any provision of law, enacted on or after October 1, 1990.

Finally, we also find that the incident reports to be released contain information that is excepted from public disclosure under section 552.130. Section 552.130 excepts from required public 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. Therefore, under section 552.130, the city must withhold the Texas driver's license numbers, the VIN number, and the license plate number that appear in the six specified incident reports. We note that the city has highlighted the driver's license numbers on several of the incident reports at issue to be excepted from public disclosure under section 552.130. We agree with this particular highlighting and have marked additional information to be withheld from public disclosure under section 552.130.

In summary, the city must release the six specifically requested incident reports. However, the city must withhold the Texas driver's license numbers, the VIN number, and the Texas license plate number that appear in the reports to be released under section 552.130. The city may also have to withhold the social security numbers that appear in the incident reports to be released as discussed above. The city must withhold the marked incident reports that represent a compilation of the named individual's criminal history pursuant to section 552.101 and the common law right to privacy.

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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/pr

Ref: ID# 137840

Encl. Submitted documents

cc: Ms. Maricarmen Garza, Esq.
Texas Rural Legal Aid, Inc.
405 N. St. Mary's Street, Suite 700
San Antonio, Texas 78205
(w/o enclosures)


 

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