|Office of the Attorney General - State of Texas
December 7, 2000
Ms. J. Middlebrooks
Dear Ms. Middlebrooks:
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# 141902.
The City of Dallas (the "city") received a request for a detailed copy of all the cell phone billing records for the city's deputy chiefs from January, 2000, to August, 2000. You claim that the requested information is excepted from disclosure under sections 552.101, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and have reviewed the representative sample of responsive information you submitted.(1)
Section 552.108(b) of the Government Code excepts from disclosure "[a]n internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution . . . if . . . release would interfere with law enforcement or prosecution." Gov't Code § 552.108(b)(1). Generally, a governmental body claiming an exception under section 552.108 must reasonably explain, if the information does not supply the explanation on its face, how and why the release of the requested information would interfere with law enforcement. See Gov't Code §§ 552.108(a)(1), (b)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). In Open Records Decision No. 506 (1988), this office concluded that cellular phone numbers for individuals with specific law enforcement responsibilities may be withheld under section 552.108. You assert that certain telephone numbers in the requested information are internal cellular telephone numbers used by the city's deputy chiefs to carry out their law enforcement duties. You state that the officers use these particular lines of communication to take care of their immediate needs in the field. After reviewing your assertions, we agree that the city may withhold cellular telephone numbers assigned to persons with specific law enforcement responsibilities under section 552.108(b)(1) of the Government Code.
The city also seeks to withhold under section 552.108(b)(1) certain other telephone numbers that the police officers have called. You state that the release of the telephone numbers of confidential informants would interfere with law enforcement because it could potentially endanger the informants' lives. In Open Records Decision No. 636 (1995), we pointed out that a cellular telephone bill does not explain on its face how its release would interfere with law enforcement and crime prevention. Id. at 4. Accordingly, we held that a governmental body seeking to withhold information relating to informants must (1) mark the information that it claims would tend to identify a confidential informant or interfere with law enforcement and crime prevention if released and (2) explain in detail how the release of the marked information would identify the informant or interfere with law enforcement. Id. In this instance, you have neither identified any telephone numbers that involve informants nor demonstrated specifically how the release of such information would identify an informant or interfere with law enforcement. Consequently, you have not established that any responsive information relating to informants may be withheld from disclosure under section 552.108.
You also assert that the responsive telephone bills contain home telephone numbers that are excepted from disclosure under section 552.117 of the Government Code. Under section 552.117(2), the city must withhold the home telephone number of a peace officer, as defined by article 2.12 of the Code of Criminal Procedure, regardless of whether the officer has complied with section 552.024 of the Government Code. The city must also withhold an officer's former telephone number from disclosure. See Open Records Decision No. 622 (1994). Section 552.117(2) does not except from disclosure the home telephone numbers of police officers' family members, however, as the submitted telephone records do not reveal on their face whether the officer has family members. See Open Records Decision No. 645 at 4 (1996) (stating that information cannot be deemed confidential under the Public Information Act merely because its release would indirectly lead to other information specifically made confidential by statute).
Lastly, we address your claim that the telephone numbers of officers' family members may be withheld under section 552.101 of the Government Code. Although your claim under section 552.101 was not timely under section 552.301, we will consider your argument. See Gov't Code §§ 552.301(b), .302; Open Records Decision No. 630 (1994). Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information that is encompassed by the common law right of privacy. See Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information must be withheld under section 552.101 in conjunction with common law privacy when (1) the information 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. Industrial Found., 540 S.W.2d at 685. This office has determined that telephone numbers are not considered intimate and embarrassing information that would be protected under common law privacy. See, e.g., Open Records Decision No. 506 (1988) (cellular phone numbers of county-issued phones used for public business generally not excepted from disclosure). As you have not directed our attention to any other law under which the information in question is considered to be confidential, we conclude that the telephone numbers of police officers' family members may not be withheld under section 552.101.
In summary, the city may withhold cellular telephone numbers assigned to police officers under section 552.108(b) of the Government Code. The city must withhold peace officers' current and former home telephone numbers under section 552.117(2). The rest of the requested information is not excepted from disclosure and must be released.
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 Hadassah Schloss at 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.
James W. Morris, III
Assistant Attorney General
Open Records Division
Ref: ID# 141902
Encl: Submitted documents
cc: Ms. Connie Piloto
1. This letter ruling assumes that the representative sample of information you submitted to this office is truly representative of the requested information as a whole. This letter ruling neither addresses nor authorizes the city to withhold information that is substantially different from the submitted information. See Gov't Code § 552.301(e)(1)(D); Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).