Cornyn Open Records Letter Ruling OR99-1394
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May 19, 1999

Mr. Michael Bostic
Assistant City Attorney
Office of the City Attorney
Criminal Law and Police Division
Municipal Building
Dallas, Texas 75201

OR99-1394

Dear Mr. Bostic:

You ask whether certain information is subject to required public disclosure under the Texas Public Information Act (the "act"), chapter 552 of the Government Code. Your request was assigned ID# 124346.

The City of Dallas Police Department (the "department") received a request for "[a]ll investigative notes, audio tapes, video tapes, oral statements, etc." concerning "Internal Affairs control # 98-168." In response to the request, you submit to this office for review a representative sample of the information at issue.(1) You contend that the requested information is excepted from disclosure based on sections 552.103, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and have reviewed the representative sample of documents submitted.

Initially, we note that among the records you submit to our office for review, you include what appear to be documents filed with a court. Specifically, we note that the submitted records include a copy of a citation. To the extent the submitted records have been filed with a court, they are a part of the public record and must be released.(2) See Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 (Tex. 1992) (orig. proceeding) (if documents are part of public record they cannot be withheld under section 552.108). If, however, the citation has not been filed with a court, we will consider whether the citation and the remaining records are protected from disclosure by the other applicable exceptions of the Government Code.

Section 552.108, the "law enforcement," exception, in part, excepts from required public disclosure

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if:

(1) release of the information would interfere with the detection, investigation, or prosecution of crime; [or]

(2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication

. . . .

(b) An 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 is excepted from the requirements of Section 552.021 if:

(1) release of the internal record or notation would interfere with law enforcement or prosecution; [or]

(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication . . . .

(Emphasis added). 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(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).

You state that the requested information is excepted from required disclosure under section 552.108, since the "case involves an open record of prosecution of State v. Harold Cornish."(3) Because you contend that release of the requested information would interfere with the detection, investigation or prosecution of crime, we conclude that the requested information may be withheld under section 552.108(a)(1). See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases).

However, we note that "basic information about an arrested person, an arrest, or a crime" is not excepted from required public disclosure. Gov't Code 552.108(c).(4) Basic information is the type of information that is considered to be front page offense report information even if this information is not actually located on the front page of the offense report. See generally Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976); Open Records Decision No. 127 (1976). Thus, except for basic information, the remaining requested information is excepted from disclosure under section 552.108(a)(1).

We next consider whether some of the requested information must be withheld pursuant to section 552.117 of the Government Code. Section 552.117(2) of the Government Code 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. Although we did not observe any such information in the submitted records, we agree that to the extent the requested records contain information subject to section 552.117(2) such information must be withheld. Gov't Code 552.352 (distribution of confidential information is a criminal offense).

Finally, although you have not raised any other applicable exception, based on the records at issue, we must consider whether a portion of the submitted information should be excepted from required public disclosure under section 552.130 of the Government Code.(5) Section 552.130 excepts information relating to a driver's license issued by an agency of this state. We have marked the information you must withhold under section 552.130.

As we resolve your request under section 552.108, we need not address your other claimed exception at this time. We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Yours truly,

Sam Haddad
Assistant Attorney General
Open Records Division

SH/nc

Ref.: ID# 124346

Encl: Submitted documents

cc: Mr. Thomas L. Glover
401 Wynnewood Village, Suite 140
Dallas, Texas 75224
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

2. The "law enforcement exception" was not intended by the legislature to shield from public view information in the hands of police units that, absent special law enforcement needs or circumstances, would ordinarily be available to the public if possessed by a different governmental unit. See Open Records Decision Nos. 434 at 2 (1986), 287 at 2 (1981) (whether information falls within section 552.108 must be determined on a case-by-case basis).

3. However, we note that section 552.108 is not applicable when no criminal investigation is undertaken. See Morales v. Ellen, 840 S.W.2d at 526 (predecessor statute to section ). Furthermore, this office has determined that section 552.108 does not protect general personnel information from public disclosure. Open Records Decision No. 562 at 10 (1990) (applying predecessor statute).

4. We note that basic information in an offense report generally may not be withheld under section 552.103. Open Records Decision No. 597 (1991).

5. The Office of the Attorney General will raise an exception on behalf of a governmental body when necessary to protect third-party interests. See generally Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).
 

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