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November 3, 2000

Ms. Ashley D. Fourt
Assistant District Attorney
County of Tarrant
401 West Belknap
Fort Worth, Texas 76196-0201

OR2000-4309

Dear Ms. Fourt:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 140902.

The Tarrant County Sheriff's Department (the "department") received a request for certain videotapes of "cell extractions" that took place in the county jail "from January 1999 to present." You further inform this office with regard to the request that:

[o]n August 17, 2000 . . . an investigative reporter for a local television station, by and through his producer . . . verbally requested copies of 30 videotapes from [the department]. . . . The request for copies stems from an earlier Public Information Act request directed to [the department]. . . . In the earlier request, the Department provided numerous videotapes (approximately 275) which were inspected [by] the requestor and his producer. . . . This Office objects to release of two of the 30 videotapes the Sheriff's Department is prepared to provide to the requestor. This Office believes that these two tapes are excepted from public disclosure under sections 552.103 and 552.108 of [the Government Code].

For purposes of this ruling, this office will assume that the two videotapes at issue were not among those videotapes previously inspected by the requestor. See Gov't Code 552.007 (prohibiting selective disclosure of public information). Although you do not explicitly state that you are requesting this decision on behalf of the department, given the representations contained in the submitted affidavit of Assistant District Attorney Kristi LaRoe, we will assume that such is the case. Before we address the applicability of the exceptions to disclosure that you raise, however, we must first address certain procedural issues.

We note at the outset that you appear to have requested a decision from this office as the result of the verbal request for copies of, among other videotapes, the two videotapes at issue. Section 552.301(a) of the Government Code provides:

A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the exceptions under Subchapter C must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. [Emphasis added.]

Accordingly, the duty to request a decision from this office as to whether information may properly be withheld under the Public Information Act does not arise until the governmental body receives a written request for the information. Consequently, the verbal request received by the department on August 17, 2000 did not trigger the requirements of section 552.301 of the Government Code.

On the other hand, you inform this office that the department in fact did previously receive two written requests for the videotapes at issue.(1) From what we gather from the information you have provided to this office, the department received the first written request for copies of videotapes of cell extractions on June 6, 2000. The requestor subsequently narrowed his request, apparently in response to an itemized estimate of charges provided to him by the department pursuant to section 552.2615 of the Government Code. In his second written request, the requestor sought, among other things, to inspect a smaller number of the department's videotapes.(2) The department received this second request on June 29, 2000. It was the department's receipt of this second written request, and not the verbal request discussed above, that triggered the requirements of section 552.301. You first requested a decision from this office regarding this matter on August 29, 2000.

Section 552.301(b) of the Government Code requires a governmental body to request a decision from the attorney general within ten business days of receiving the written request for information the governmental body wishes to withhold unless there has been a previous determination that the requested information is excepted from required public disclosure. When a governmental body fails to comply with the requirements of section 552.301, 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 Publishing 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 reason to withhold the information to overcome this presumption. Gov't Code 552.302; see also Hancock, 797 S.W.2d at 381.

You have not demonstrated that a compelling reason exists for withholding the two videotapes at issue pursuant to the exceptions you raised. See Open Records Decision Nos. 542 (1990) (section 552.103 waivable by governmental body), 177 (1977) (section 552.108 waivable by governmental body). Accordingly, the department may not withhold any portion of the two videotapes at issue under either of these exceptions.

We believe, however, that compelling reasons exist for withholding portions of the videotapes from the public pursuant to common law privacy. Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information coming within the common law right to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Common law privacy protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and it is of no legitimate concern to the public. Id. at 683-85.

In Industrial Foundation, the Texas Supreme Court considered intimate and embarrassing information that relates 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. 540 S.W.2d at 683. This office has also determined that common law privacy protects the following information: the kinds of prescription drugs a person is taking, Open Records Decision No. 455 (1987); the results of mandatory urine testing, id.; illnesses, operations, and physical handicaps of applicants, id.; the fact that a person attempted suicide, Open Records Decision No. 422 (1984); the names of parents of victims of sudden infant death syndrome, Attorney General Opinion JM-81; and information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/seizures, or emotional/mental distress. Open Records Decision No. 343 (1982).

Upon review of the videotapes at issue, we conclude that portions of the videotapes are highly intimate or embarrassing and of no legitimate public interest. The department must withhold the following portions of the videotapes pursuant to common law privacy:

Videotape dated 3-10-00: withhold from beginning to 4:49:22

withhold from 5:02:01 to 5:02:05

Videotape date 4-2-00 : withhold from 7:09:31 to 7:09:36

withhold from 7:28:29 to 7:29:26

The remaining portions of the videotapes must be released to the requestor.

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,


James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/RWP/seg

Ref: ID# 140902

Encl. Submitted video tapes

cc: Mr. Bennett Cunningham
Investigative Reporter
CBS-11
10111 N. Central Expwy.
Dallas, Texas 75231
(w/o enclosures)


 

Footnotes

1. You did not, however, provide this office with "a signed statement as to the date on which the written request for information was received" as required by section 552.301(e)(1)(C) of the Government Code. For purposes of this ruling, we will assume the date stamps on these two written requests accurately reflect the dates on which the department first received them.

2. Because you do not argue that the other requested information is excepted from public disclosure, we assume the department has released all remaining responsive information to the requestor. If it has not, it must do so at this time. See Gov't Code 552.302.
 

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