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January 25, 2000

Lieutenant Brad Lancaster
Amarillo Police Department
200 East 3rd
Amarillo, Texas 79101-1514

OR2000-0245

Dear Lieutenant Lancaster:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131427.

The Amarillo Police Department (the "department") received two requests for numerous police narrative reports from the same requestor on November 10, 1999.(1) You claim that the requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law either constitutional, statutory or by judicial decision." Section 552.101 encompasses confidentiality provisions such as Family Code section 261.201(a) of the Family Code. Section 261.201(a) of the Family Code provides as follows:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

We have marked the incident reports you submitted that are within the scope of section 261.201 of the Family Code. We are not aware of any rules promulgated by the department which permit the dissemination of this type of information. Accordingly, you must withhold these particular incident reports in their entirety under section 552.101 of the Government Code.

With regard to your section 552.108 assertion, section 552.108 of the Government Code, 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;

(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[.]

After reviewing the remaining offense reports, we conclude that you have met your burden of establishing that the release of some of the offense reports at this time could interfere with the prosecution of crime. 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). We have marked the incident reports which you may withhold under section 552.108(a)(1).

In addition, a governmental body attempting to protect information from disclosure under 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. We find that you have met your burden and we have marked the incident reports that may be withheld under section 552.108(a)(2).

Section 552.108 does not, however, except from required public disclosure "basic information about an arrested person, an arrest, or a crime." 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. Generally, the identity of the victim or complainant may not be withheld from public disclosure under section 552.108. However, information tending to identify victims of serious sexual offenses and detailed description of these offenses must be withheld from public disclosure pursuant to section 552.101 because such information is protected by common law privacy. See Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982). We, therefore, conclude that the department must withhold information identifying the sexual assault victims from disclosure under section 552.101 of the Government Code. The remaining basic information, however, must be released.

The remaining documents you submitted are dispatch entry pages which, although related to the investigation of crime, did not result in incident reports. You state that you do not challenge release of these documents. We presume, therefore, that these documents have been released to the requestor.

Lastly, we note that you did not submit incident report numbers 96-105720, 96-104115, 96-752054, 96-70065, 97-40037, 97-55896, 97-67042, and 98-5481 for review. Pursuant to section 552.301(e), a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. You did not fully comply with section 552.301(e) because you did not submit the incident reports listed above. Under section 552.302, a governmental body's failure to submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make a compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code 552.302); Open Records Decision No. 319 (1982). You have not shown such a compelling interest to overcome the presumption that the information at issue is public. Accordingly, you must release the requested information in incident report numbers 96-105720, 96-104115, 96-752054, 96-70065, 97-40037, 97-55896, 97-67042, and 98-5481. However, we note that distribution of confidential information constitutes a criminal offense. Gov't Code 552.352.(2)

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,

Rose-Michel Munguía
Assistant Attorney General
Open Records Division

RMM/jc

Ref: ID# 131427

Encl. Submitted documents

cc: Mr. Eric D. Dixon
1805 South Avenue D
Portales, New Mexico 88130
(w/o enclosures)


 

Footnotes

1. On November 30, 1999, this office received a letter by facsimile from the requestor stating that he wished to narrow his requests to the department. Although, the requestor indicated in his letter that he had copied the department, the department has not informed this office of its intent to modify its request for a decision. Therefore, we only address the above-mentioned requests.

2. The department must release the incident reports unless they are confidential by law.
 

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