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July 15, 1999

Lieutenant Terry Lichtie
Amarillo Police Department
200 S. E. 3rd
Amarillo, Texas 79101-1515

OR99-1964

Dear Lieutenant Lichtie:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 125784.

The Amarillo Police Department (the "department") received a request for police records relating to a named individual. You contend that the submitted documents are excepted from required public disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." 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). In this instance, the requestor asks for all information compiled on a certain person during a particular time period. We believe, in this case, that the individual's right to privacy has been implicated. Thus, to the extent the named individual is listed as a suspect, we conclude that the department must withhold this information under section 552.101 of the Government Code.(1) See id.; see also Gov't Code 411.106(b). We have marked the information that must be withheld.

You also argue that some of the submitted information is excepted from disclosure under section 552.108. Section 552.108, the "law enforcement exception," provides in relevant part as follows:

    (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of 552.021 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[.]

A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You indicate that some of the submitted reports ended in a conclusion other a conviction or deferred adjudication.(2) We conclude that you have shown the applicability of section 552.108(a)(2) to these reports. Thus, you may withhold these documents under section 552.108(a)(2).(3)

You have also submitted report 93-85998. You have not shown the applicability of sections 552.101 or 552.108 to this report. Therefore, you may not withhold this report from disclosure.

We note, however, that report 93-85998 includes an accident report form that appears to have been completed pursuant to chapter 550 of the Transportation Code. See Transp. Code 550.064 (officer's accident report). We believe access to this information is governed by provisions outside the Public Information Act. The Seventy-fifth Legislature repealed V.T.C.S. article 6701d and amended section 550.065 of the Transportation Code concerning the disclosure of accident report information. Act of May 29, 1997, 75th Leg., R.S., ch. 1187, 1997 Tex. Gen. Laws. 4575, 4582-4583 (to be codified at Transp. Code 550.065). However, a Travis County district court has issued a temporary injunction enjoining the enforcement of the amendment to section 550.065 of the Transportation Code. Texas Daily Newspaper Association, v. Morales, No. 97-08930 (345th Dist. Ct., Travis County, Tex., Oct. 24, 1997) (second amended agreed temporary injunction). A temporary injunction preserves the status quo until the final hearing of a case on its merits. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 617, 358 S.W.2d 589 (1962). The Supreme Court has defined the status quo as "the last, actual peaceable, non-contested status that preceded the pending controversy." Texas v. Southwestern Bell Tel. Co. 526 S.W.2d 526, 528 (Tex. 1975). The status quo of accident report information prior to the enactment of S.B. 1069 is governed by section 47 of article 6701d, V.T.C.S.(4)

Section 47(b)(1) provides that:

    The Department or a law enforcement agency employing a peace officer who made an accident report is required to release a copy of the report on request to:

    . . . .

      (D) a person who provides the Department or the law enforcement agency with two or more of the following:

        (i) the date of the accident;

        (ii) the name of any person involved in the accident; or

        (iii) the specific location of the accident

V.T.C.S. art. 6701d, 47(b)(1) (emphasis added). Under this provision, a law enforcement agency "is required to release" a copy of an accident report to a person who provides the law enforcement agency with two or more pieces of information specified by the statute. Id. In this instance, the requestor has not provided the department with the statutorily required information. Therefore, we agree that you may not release the accident report to the requestor.

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.

Sincerely,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/ch

Ref: ID# 125784

Encl: Marked documents

cc: Ms. Mary Mitchell
P.O. Box 9158
Amarillo, Texas 79105-9158
(w/o enclosures)


 

Footnotes

1. We are able to make a determination under Reporters Committee at this time; however, if you receive a subsequent request for this information, you should reassert your other arguments against disclosure at that time. Gov't Code 552.352 (distribution of confidential information is a criminal offense).

2. Report 90-58455 does not appear to be responsive to this request.

3. We note, however, 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). 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) (summarizing types of information considered to be basic information, including detailed description of offense).

4. Although the Seventy-fourth Legislature repealed and codified article 6701d as part of the Transportation Code, the legislature did not intend a substantive change of the law but merely a recodification of existing law. Act of May 1, 1995, 74th Leg., R.S., ch. 165, 24, 25 1995 Tex. Gen. Laws 1025, 1870-71. Furthermore, the Seventy-fourth Legislature, without reference to the repeal and codification of V.T.C.S. article 6701d, amended section 47 of article 6701d, V.T.C.S., relating to the disclosure of accident reports. Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413, 4414. Because the repeal of a statute by a code does not affect an amendment of the statute by the same legislature which enacted the code, the amendment is preserved and given effect as part of the code provision. Gov't Code 311.031(c). Thus, the amendment of section 47 of article 6701d, V.T.C.S. is the existing law regarding the availability of accident report information, and may be found following section 550.065 of the Transportation Code. See also Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413, 4414.
 

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