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November 29, 2000

Mr. Leonard W. Peck, Jr.
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342

OR2000-4554

Dear Mr. Peck:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 141429.

The Texas Department of Criminal Justice (the "department") received a request for a copy of the Unit's summary report regarding a specific incident. You claim that the requested information is excepted from disclosure under sections 552.101, 552.107, and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also taken into consideration the comments and documents submitted by the requestor.

In this instant request, the department is responding to request made by the requestor on August 31, 2000. However, it appears from the information submitted by the requestor, that the department received a similar request from the same requestor dated August 8, 2000.

The department did not submit a request for a ruling to this office in response to the August 8, 2000, request. Section 552.301 of the Government Code provides that a governmental body must ask the attorney general for a decision as to whether requested documents must be disclosed not later than the tenth business day after the date of receiving the written request. In this instance, it appears that the department has only made a timely response to the request dated August 31, 2000. If in fact the department received the August 8, 2000, request, then the department submitted a request for a ruling from this office more than ten business days after the department's receipt of that request. Therefore, it appears that the department failed to meet its ten-day deadline for requesting an opinion from this office.

When a governmental body fails to request a decision within ten business days of receiving a request for information, the information at issue is presumed public. Gov't Code 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App. -- Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The governmental body must show a compelling interest to withhold the information to overcome this presumption. See id. Normally, a compelling interest is that some other source of law makes the information confidential or that third party interests are at stake. In this instance section 552.131 provides a compelling interest to withhold the requested information.

Section 552.131(a) relating to department inmates states:

Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department.

Gov't Code 552.131. We find that the information you have submitted is about an inmate who is confined in a facility operated by or under a contract with the department. Accordingly, section 552.131 is applicable to the submitted information. However, section 552.131 is explicitly made subject to section 552.029 of the Government Code. Section 552.029 provides for required public access to basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving an inmate confined in a facility operated by or under a contract with the department. See Gov't Code 552.029. You state that the requestor's request references a specific inmate's disciplinary case rather than the criminal investigation. You contend that section 552.029 is inapplicable because the request references an episode of inmate discipline and not that of an alleged crime involving an inmate. After reviewing your assertions, we find that because the submitted information pertains to the death of an inmate in custody it falls within the purview of section 552.029(a)(8). We note that basic information regarding the death of an inmate in custody must be released in accordance with section 552.029(a)(8) of the Government Code. This office has determined that basic information includes the time and place of the incident, names of inmates and department officials directly involved in the incident, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding criminal charges or disciplinary actions filed as a result of the incident. Therefore, except as noted above, the department must withhold the requested information from disclosure under section 552.131. Because we are able to make a determination under section 552.131, we need not address your claim under sections 552.101 and 552.107 of the Government Code.(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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497.

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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/seg

Ref: ID# 141429

Encl. Submitted documents

cc: Ms. Warene D. Alford
2002 Cedar Valley Lane
Dallas, Texas 75232-2306
(w/o enclosures)


 

Footnotes

1. The Ruiz decision restricted the dissemination of "sensitive information" regarding prison inmates. Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), aff'd in part and rev'd in part, 679 F.2d 1115, amended in part and vacated in part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U. S.1042 (1983). The Ruiz final judgment, entered December 11, 1992, gave the Board of Criminal Justice authority to define "sensitive information." The Board met on January 21, 2000, and decided:

The term Sensitive Information shall include all information regarding TDCJ-ID offenders not required to be disclosed pursuant to Section 552.029, Government Code.

Thus, information in the categories in section 552.029 of the Government Code is not "sensitive information" subject to Ruiz.
 

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