|Office of the Attorney General - State of Texas
May 4, 2000
Ms. Elaine S. Hengen
Dear Ms. Hengen:
You ask whether certain information is subject to required public disclosure under the Public Information Act (the "act"), chapter 552 of the Government Code. Your request was assigned ID# 135227.
The City of El Paso (the "city") received a request for all of the records in an internal affairs investigation file concerning the requestor, a city police officer. We understand that you have released some of the information responsive to the request. You seek to withhold the remaining information responsive to the request under sections 552.101, 552.103, 552.107, 552.108, 552.111, 552.117 and 552.130 of the Government Code.
Section 552.108(a)(2) and (b)(1) except 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:
. . . .
(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 . . . if:
(1) release of the internal record or notation would interfere with law enforcement or prosecution[.]
You have submitted criminal and internal investigative records which relate to a case of alleged unnecessary use of force by an officer in 1997. You advise that the matter was submitted to the district attorneys office but that no action has been taken.
One of the submitted records includes a city use of force policy. You may withhold this information under section 552.108(b)(1), since we believe that it is an internal record, the release of which would interfere with law enforcement. The other submitted information may be generally withheld under section 552.108(a)(2) since, according to your representations, the material relates to a matter which did not result in conviction or deferred adjudication.
Please note that section 552.108 does not except from required public disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). If it has not already done so, the city must release these types of information in accordance with 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).
Since we have resolved this matter under section 552.108, we do not address your other claimed exceptions to disclosure.
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.
Ref: ID# 135227
Encl. Submitted documents
cc: Mr. Jeff McKinley
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US