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October 17, 2000

Mr. Brad Neighbor
First Assistant City Attorney
City of Garland
P o Box 469002
Garland, Texas 75046-9002

OR2000-4023

Dear Mr. Neighbor:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 141201.

The Garland Police Department (the "department") received a request for a copy of a police report of an incident which occurred July 9, 1996, and "any criminal file you have" regarding a named individual. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses confidentiality provisions such as Family Code section 58.007 and its predecessor, section 51.14(d). Prior to its repeal by the Seventy-fourth Legislature, section 51.14(d) of the Family Code provided for the confidentiality of juvenile law enforcement records. 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. Act of May 27, 1995, 74th Leg., R.S., ch. 262, 100, 1995 Tex. Gen. Laws 2517, 2591 (Vernon). This office concluded in 1996 that section 58.007 of the Family Code, as enacted by the Seventy-fourth Legislature, does not make confidential juvenile law enforcement records relating to conduct that occurred on or after January 1, 1996. Open Records Decision No. 644 (1996). The Seventy-fifth Legislature, however, amended section 58.007 to once again make juvenile law enforcement records confidential, effective September 1, 1997. Act of June 2, 1997, 75th Leg., R.S., ch. 1086, 1997 Tex. Sess. Law Serv. 4179, 4187 (Vernon). It chose not to make the 1997 amendment retroactive in application. Consequently, law enforcement records pertaining to juvenile conduct that occurred between January 1, 1996, and September 1, 1997, are not subject to the confidentiality provisions of either the former section 51.14(d) or the current section 58.007 of the Family Code.

You have submitted three incident reports to this office. Two relate to incidents which occurred between January 1, 1996, and September 1, 1997. Thus, these incident reports are not excepted from disclosure under either former section 51.14(d) or the current section 58.007 of the Family Code. However, a third report concerns an incident involving a juvenile which occurred in February of 1995. We conclude that this arrest report, which we have marked with a blue tag, is confidential under section 51.14(d) of the Family Code, and must be withheld from disclosure under section 552.101 of the Government Code.

Section 552.101 also excepts from required public disclosure information that is confidential under common law privacy. Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). To the extent that the requestor is asking for all records in which the named individuals are identified as suspects, the requestor, in essence, is asking that the city compile those individuals' criminal histories. 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). The department, therefore, must withhold the May 1996 arrest report in which the named individual is identified as a suspect. We have marked this document with a yellow tag.

Finally, the July 1996 incident report in which the named individual is listed as the complainant is not covered by either sections 51.14(d) or 58.007 of the Family Code, or under common law privacy. Therefore, this report, which we have marked with a green tag, must be released to the requestor, with the following exception.

The Seventy-fifth Legislature added section 552.130 to the Open Records Act which governs the release and use of information obtained from motor vehicle records. Section 552.130 provides in relevant part as follows:

(a) Information is excepted from the requirement of Section 552.021 if the information relates to:

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

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

Therefore, you must redact any driver's license, license plate or vehicle identification numbers from the July 1996 incident report prior to releasing it to the requestor.(1)

In summary, you must release to the requestor the incident report relating to the July 1996 incident, with driver's license, license plate or vehicle identification numbers redacted. You must withhold under section 552.101 of the Government Code and common law privacy the arrest report dated May 1996, and you must withhold under section 51.14(d) of the Family Code and section 552.101 the arrest report dated February of 1995.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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 A. Pearle
Assistant Attorney General
Open Records Division

MAP/pr

Ref: ID# 141201

Encl. Submitted documents

cc: Ms. Lydia Zuniga
Smith & Maples, L.L.P.
1300 South University Drive
Suite 510
Fort Worth, Texas 76107
(w/o enclosures)


 

Footnotes

1. We note you have redacted from the copy of the July 1996 incident report submitted to this office information under the heading "Accomplices." This information may not be redacted from the copy of the incident report to be provided to the requestor.
 

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