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May 11, 2000

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

OR2000-1838

Dear Mr. Risley:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 135081.

The City of Victoria (the "city") received a request for a particular incident report and a criminal activity report for a specified address during a particular time interval. You have submitted records that you believe to be responsive to the request. You indicate that you already have released some of the requested information, including basic front-page offense and arrest report information in accordance with section 552.108(c) of the Government Code.(1) You claim that the balance of the requested information is excepted from disclosure under section 552.108. We have considered the exception you claim and have reviewed the information you submitted.(2)

Section 552.108 of the Government Code, the "law enforcement exception," provides in relevant part that "[i]nformation 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). A governmental body that claims an exception to public disclosure under section 552.108 must reasonably explain, if the responsive information does not do so on its face, how and why section 552.108 is applicable. See Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). In this instance, you inform us that the submitted information pertains to an aggravated sexual assault and robbery that occurred at the address and during the time interval specified by the requestor. You further explain that the case was prosecuted, resulting in a conviction that currently is on appeal and therefore is subject to retrial. Based on your representations and our review of the submitted information, we conclude that you have demonstrated that release of the information that you seek to withhold would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 184-85 (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); see also Open Records Decision Nos. 624 at 5-6 (1994), 372 at 4 (1983) (stating that where an incident allegedly involving criminal conduct remains subject to investigation or prosecution, the law enforcement exception to disclosure may be invoked by any proper custodian of related information). We therefore conclude that section 552.108(a)(1) is applicable to the submitted information. Consequently, you may withhold the rest of the submitted information from public disclosure pursuant to section 552.108(a)(1).

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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ljp

Ref: ID# 135081

Encl. Submitted documents

cc: Ms. Teather Vandenbraden
Brock & Person
10101 Reunion Place, Suite 1000
San Antonio, Texas 78216-4157
(w/o enclosures)


 

Footnotes

1. Section 552.108(c) requires the release of "basic information about an arrested person, an arrest, or a crime." Gov't Code 552.108(c). Section 552.108(c) refers to the basic front-page offense and arrest report information held to be 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). See 531 S.W.2d at 186-87; see also Open Records Decision No. 127 at 3-4 (1976).

2. You have not submitted or addressed the requested "criminal activity report." We therefore presume that, if the city has such a report, it has been released to the requestor. See Gov't Code 552.301(b), (e), .302.
 

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