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September 7, 2000

Ms. Elaine S. Hengen
Assistant City Attorney
Office of the City Attorney
City Of El Paso
2 Civic Center Plaza
El Paso, Texas 79901-1196

OR2000-3450

Dear Ms. Hengen:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 138705.

The El Paso Police Department (the "department") received three requests for information relating to a specified police officer including personnel information such as the officer's resume, biographical information, Internal Affairs Card, positions held, awards and reprimands. The first requestor also asked for photos of two specified police officers. You state that you have sent each of the requesters an estimate of cost as required by section 552.2615 of the Government Code. Gov't Code 552.2615(a) (requiring governmental body to provide itemized estimate of charges to requestor if charges exceed $40). Thus, we assume that you are going to release responsive information to the requesters upon acceptance of the estimated charges. See Gov't Code 552.2615(b) (requiring requestor to accept the estimated charges or modify request within ten days after date estimate sent to the requestor). You claim that the submitted information is excepted from disclosure under sections 552.101, 552.117, and 552.119 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

You claim that portions of the submitted information are excepted under section 552.101 of the Government Code. 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), cert. denied, 430 U.S. 931 (1977). The doctrine of common law privacy protects information that contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and the information must be of no legitimate concern to the public. Id. You claim that the identity of a sexual harassment victim must be withheld under section 552.101 and common law privacy. In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court found that a governmental body must withhold the identities of alleged victims and witnesses to alleged sexual harassment, as well as any information which would tend to identify a witness or victim based on common law privacy. Therefore, we conclude, that under common law privacy and the holding in Ellen, you must withhold the information that you marked in Exhibit F relating to the identity of the sexual harassment victim. We have marked additional information that must also be withheld in accordance with Ellen.

You also assert that information in Exhibit F pertaining to juvenile suspects is excepted from disclosure under section 552.101 in conjunction with former section 51.14(d) of the Family Code.(1) Section 552.101 also excepts information protected by statute. Section 51.14(d) of the Family Code makes law enforcement files and records of a child confidential. However, we do not believe that the submitted administrative "personnel incident reports" are the type of law enforcement information contemplated by section 51.14(d). Although we do not believe that section 51.14(d) of the Family Code excepts the administrative records, we conclude that the identity of the juvenile suspects in Exhibit F must be withheld under section 552.101 and common law privacy. Thus, you must withhold the identifying information of the juveniles that you marked in Exhibit F.

You also claim that information in Exhibit H pertaining to juvenile victims is excepted from disclosure under section 552.101 in conjunction with section 261.201(a) of the Family Code. Section 261.201(a) of the Family Code makes confidential reports of alleged or suspected child abuse or neglect as well as the files, reports, records, communications, and working papers used or developed in a child abuse or neglect investigation. Because Exhibit H is a letter recognizing an officer's outstanding work, we do not believe that this letter is a report of alleged abuse or neglect or a record which was used or developed in an abuse or neglect investigation. Accordingly, we conclude that Exhibit H is not excepted under section 552.101 in conjunction with section 261.201(a) of the Family Code. However, we find that the names of the juvenile victims of indecency with a child in Exhibit H must be withheld under section 552.101 and common law privacy. See Open Records Decision Nos. 628 at 3 (1994) (finding that the identity of juvenile victims of serious sexual offenses must be protected under section 552.101 and common law privacy), 393 at 2 (1983). Therefore, you must withhold the names of the juvenile victims in Exhibit H.

You also assert that some of the submitted information is protected by section 552.117(2). 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. Therefore, we agree that the information you have marked in Exhibits G and H must be withheld under section 552.117(2) of the Government Code.

You also argue that section 552.119 of the Government Code excepts Exhibits D and E. 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 photographs of peace officers under section 552.119(a) unless the peace officer has given written consent to the disclosure of the photograph. Gov't Code 552.119(b). Because you state that the peace officers' have not consented to the release of the photographs, you must withhold Exhibits D and E under section 552.119 of the Government Code.

In conclusion, you must withhold the marked information in Exhibit F and the information pertaining to juvenile victims in Exhibit H under section 552.101 of the Government Code and common law privacy. Further, you must withhold the section 552.117(2) information in Exhibits G and H and you must withhold Exhibits D and E under section 552.119 of the Government Code.

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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/er

Ref: ID# 138705

Encl. Marked documents

cc: Mr. Louie Gilot
El Paso Times
P. O. Box 20
El Paso, Texas 79999
(w/o enclosures)

cc: Ms. Christina Brown
Reporter, KTSM-TV
801 North Oregon
El Paso, Texas 79902
(w/o enclosures)

cc: Ms. Leticia Zamarripa
KDBC-TV
2201 East Wyoming
El Paso, Texas 79903
(w/o enclosures)


 

Footnotes

1. Law enforcement records pertaining to conduct occurring before January 1, 1996 are governed by the former section 51.14(d), which was continued in effect for that purpose. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, 100, 1995 Tex. Gen. Laws 2517, 2591.
 

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