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December 7, 1999

Mr. Miles K. Risley
Senior Assistant City Attorney
Legal Department
City of Victoria
P O Box 1758
Victoria, Texas 77902-1758

OR99-3542

Dear Mr. Risley:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 130104.

The City of Victoria (the "city") received a request for information regarding case number 9912732. You contend that, except for the categories of information specifically made public in Houston Chronicle Publishing Company 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), the requested information is excepted from required public disclosure pursuant to section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.108 of the Government Code states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code 552.108(a)(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), (b), .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You inform us that the requested information pertains to an ongoing criminal investigation. Therefore, the city may withhold the requested information, except as provided below, under section 552.108(a)(1), as release of the information "would interfere with the detection, investigation, or prosecution of crime."(1)

As your request to us indicates, however, information normally found on the front page of an offense report is generally considered public. See generally Gov't Code 552.108(c); Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177; Open Records Decision No. 127 (1976). Thus, the city must release the types of information that are considered to be front page offense report information, even if this information is not actually located on the front page of the offense report. You state that the city has already released this information.

The affidavit to support the search warrant is made public by statute if it has been executed. See Code Crim. Proc art. 18.01(b). Therefore, the city may not withhold the affidavit supporting the search warrant under section 552.108 of the Government Code.

We next note that among the submitted documents are two medical examiner's reports. Section 11 of article 49.25 of the Code of Criminal Procedure requires that the full medical examiner's report and detailed findings of an autopsy be made available to the public. Open Records Decision No. 529 (1989). Section 11 has been amended to provide that:

[t]he records [of an autopsy] are subject to required public disclosure in accordance with Chapter 552, Government Code, except that a photograph or x-ray of a body taken during an autopsy is excepted from required public disclosure in accordance with Chapter 552, Government Code, but is subject to disclosure:

(1) under a subpoena or authority of other law; or

(2) if the photograph or x-ray is of the body of a person who died while in the custody of law enforcement.

Act of May 22, 1999, 76th Leg., R.S., ch 607, 2. This amendment took effect September 1, 1999. Id. 3. The city must release the two four-page medical examiner's reports.(2)

Finally, included among the documents the city seeks to withhold is an accident report form under chapter 550 of the Transportation Code. See Transp. Code 550.064 (officer's accident report). 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 Ass'n, 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, 358 S.W.2d 589 (1962). The supreme court has defined the status quoas "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.(3)

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 the situation at hand, the requestor has provided the city with the date of the accident, but not the name of any person involved or the specific location of the accident. Thus, the city may not release this information under section 47(b)(1)(D) of article 6701d, V.T.C.S. So, in summary, the city must release the front page offense report information, the affidavit in support of the search warrant, and the medical examiner's reports. The city must withhold the peace officer's report.

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).

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,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/jc

Ref: ID# 130104

Encl. Submitted documents

cc: Mr. Paul Chilton
Chilton Investigations
6150 Richmond Avenue, Suite 200
Houston, Texas 77057
(w/o enclosures)


 

Footnotes

1. Of course, the city may choose to release all or part of the information at issue that is not otherwise confidential by law. See Gov't Code 552.007, .352.

2. The submitted documents do not appear to include photographs or x-rays taken during the autopsies. To the extent that such photographs or x-rays exist, they must be withheld pursuant to article 49.25 of the Code of Criminal Procedure.

3. 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. See Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413, 4414.
 

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