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August 17, 1999

Sergeant Martin Birkenfeld
Amarillo Police Department
200 E. 3rd
Amarillo, Texas 79101-1514

OR99-2321

Dear Sergeant Birkenfeld:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 126610.

The Amarillo Police Department (the "department") received a request for offense report number 99-41103. You assert that the requested report is excepted from required public disclosure under section 552.108 of the Government Code.

Section 552.108 of the Government Code reads in 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 Section 552.021 if:

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

(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;

(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[.]

This office applies section 552.108(a)(1) when a requested offense report pertains to an ongoing investigation or prosecution. A governmental body claiming section 552.108(a)(2) should demonstrate that the requested information relates to a concluded criminal case that has come to some type of final result other than a conviction or deferred adjudication.

In this case, the department has provided this office conflicting information so that we are unable to conclude that section 552.108 is applicable in this instance. It appears from the face of the document that the case is still pending because the report at issue states that the case was filed with the municipal court. However, you appear to assert that section 552.108(a)(2) excepts the requested information because the criminal case has concluded. It is not clear to this office, nor have you explained, how or if the criminal case actually concluded in light of the fact that charges were filed in the municipal court. We cannot reconcile this apparent conflict. A governmental body claiming an exception from disclosure under section 552.108(a)(1) 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. Ex parte Pruitt, 551 S.W. 2d 706 (Tex. 1977). Consequently, the department may not withhold the information from the requestor based on section 552.108 of the Government Code.

This office has interpreted section 552.108(a)(2) to apply to information that relates to a criminal investigation or prosecution that concluded in a result other than a conviction or deferred adjudication. Thus, if the information relates to a pending case, that is, a case which has had no result, section 552.108(a)(2) cannot apply because a pending case has not concluded. In contrast, this office has interpreted section 552.108(a)(1) to apply to, among other things, information that relates to a pending criminal investigation or prosecution because the release of information that relates to a pending case is presumed to interfere with the investigation and prosecution of the case. Consequently, in the usual case, subsections (a)(1) and (a)(2) cannot simultaneously apply to information relating to the same case. Thus, to argue that both subsections apply to the requested information by stating that the relevant case is pending and also stating that the case did not result in a conviction or deferred adjudication is to present conflicting information about the status of the case. In order to determine the applicability of section 552.108, this office requires accurate, current information about the status of the case to which requested information relates.

We note that the documents contain information protected from disclosure by sections 552.101 and 552.130 of the Government Code. The social security numbers in the documents may be confidential if they were obtained or are maintained by the department pursuant to any provision of law, enacted on or after October 1, 1990. 42 U.S.C. section 405(c)(2)(C)(vii); see Open Records Decision No. 622 (1994). Section 552.130 excepts information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state. Thus, you must withhold the driver's license number under section 552.130.

We are resolving this matter with this 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 may not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/nc

Ref.: ID# 126610

Encl.: Submitted documents

cc: Mr. Johnny Putts
2601 N. Grand, Apt. 144
Amarillo, Texas 79107
(w/o enclosures)


 

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