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December 1, 2000

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

OR2000-4567

Dear Mr. Peck:

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# 141793.

The Texas Department of Criminal Justice (the "department") received a request for a specified "use of force" report. You raise no exception to release of "basic information" regarding this use of force under Government Code section 552.029(8). We assume that this "basic information" has been released to this requestor. You claim that other than this "basic" information, the responsive information is excepted from disclosure under sections 552.101, 552.107, 552.108 and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

From our review of the submitted information, we conclude that it was obtained or is maintained by the department and is about an inmate who is confined in a facility operated by or under a contract with the department. The information is therefore subject to section 552.131 of the Government Code. In pertinent part this section provides:

(a) 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.

(b) Subsection (a) does not apply to:

(1) statistical or other aggregated information relating to inmates confined in one or more facilities operated by or under a contract with the department; or

(2) information about an inmate sentenced to death.

We find that the submitted information does not fall within the ambit of subsection (b). Section 552.131 is explicitly made subject to section 552.029 of the Government Code, which provides in pertinent part:

Notwithstanding Section 508.313 or 552.131, the following information about an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice is subject to required disclosure under Section 552.021:

. . .

(8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate.

Thus, "basic information" regarding an incident involving the use of force is subject to required disclosure. Basic information includes the time and place of the incident, names of the inmate and TDCJ officials directly involved, 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. From our review of the information which you have identified as "basic," we conclude that release of this information complies with the requirements of section 552.029. All other information responsive to the request must be withheld pursuant to Government Code section 552.131.

You also raise section 552.107(2) in conjunction with Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), aff'd in part and vacated in part, 679 F.2d 1115, amended in part and vacated in part, reh'g denied 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983). The Ruiz decision restricted the dissemination of "sensitive information" regarding prison inmates. The Ruiz final judgement, entered December 11, 1992, gave the Board of Criminal Justice authority to define "sensitive information." This 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 delineated in section 552.029 of the Government Code is not "sensitive" information subject to Ruiz. Information found to be within the ambit of section 552.029 of the Government Code may not be withheld under section 552.107(2) of the Government Code.

Your argument under section 552.101 is resolved by the above discussion under sections 552.131 and 552.029. Therefore, your arguments raised under other sections of the Government Code will not be further addressed.

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,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/er

Ref: ID# 141793

Encl: Submitted documents

cc: Mr. Kenneth Chumley
Terrell Unit, TDCJ-ID
12002 FM 350 South
Livingston, Texas 77351
(w/o enclosures)


 

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