Cornyn Open Records Letter Ruling OR99-1422
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John Cornyn
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May 21, 1999

Mr. Charles M. Allen, II
Legal Office
Richardson Police Department
P.O. Box 831078
Richardson, Texas 75083-3800

OR99-1422

Dear Mr. Allen:

You have asked 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# 124260.

The City of Richardson Police Department (the "department") received, from the same requestor, several requests for a variety of information concerning a specified incident involving the requestor and related matters. Specifically, among the requested categories of information sought, the requestor asks for records related to "911" calls to the department, citation number 333860, information pertaining to the requestor, policy manuals, as well other records concerning other "911" calls. In response to the request, you submit to this office for review the information at issue. Although you state that you have released certain responsive records, you claim that the remaining submitted records are subject to "exceptions to the Act." You contend that the submitted records are excepted from required public disclosure by sections 552.024, 552.102, 552.103, 552.108 and 552.117 of the Government Code.(1)

We have considered the exceptions and arguments you raise, and have reviewed the information submitted.

Initially, we note that although you raised sections 552.102 and 552.103, you did not explain how these exceptions apply to the information at issue, thus we are unable to consider them. See Gov't Code 552.301(b); Open Records Decision No. 363 (1983). Chapter 552 of the Government Code places on the custodian of public records the burden of establishing that records are excepted from public disclosure. Attorney General Opinion H-436 (1974). Furthermore, we note that you have not submitted any records which would implicate section 552.102 of the Government Code. Therefore, we assume that responsive information will be released to the requestor, unless confidential by law.

Section 552.108, the "law enforcement exception," provides in relevant part as follows:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 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.

. . . .

(c) This section does not except from the requirements of Section 552.021 information that is basic information about an arrested person, an arrest, or a crime.

Gov't Code 552.108. Generally, a governmental body claiming an exception from disclosure under section 552.108(a)(1) must reasonably explain, if the information does not supply the explanation on its face, how and why the release of the requested information would interfere with law enforcement. Ex parte Pruitt, 551 S.W. 2d 706 (Tex. 1977).

In this instance, you state that "[p]roduction of law enforcement record [sic] at this time would interfere with the investigation, detection and prosecution of crime." You also assert that "there has been no conviction or deferred adjudication in this matter . . . [and] no trial date has been set as of this writing." Based on your representation, we understand that there is pending prosecution in the matter related to citation number 333860. Therefore, we conclude that you have met your burden of establishing that release of the records concerning the pending prosecution could interfere with law enforcement or prosecution. The department, therefore, may withhold the submitted information related to citation number 333860 pursuant to section 552.108(a)(1).

However, certain basic information normally found on the front page of an offense report, including a detailed description of the offense, is generally considered public. See Gov't Code 552.108(c); see generally Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 187 (Tex. Civ. App--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976); Open Records Decision No. 127 (1976). As for the other submitted records, which do not appear related to citation number 333860, we conclude that you have not explained why those records are subject to the pending investigation. Therefore, such records must be released, unless confidential, since they are not excepted from required disclosure under section 552.108.

We next consider whether some of the requested information must be withheld pursuant to section 552.117 of the Government Code. Section 552.117(2) of the Government Code excepts from public disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members. Although we did not observe any such information in the submitted records,(2) we agree that to the extent the requested records contain information subject to section 552.117(2) such information must be withheld. Gov't Code 552.352 (distribution of confidential information is criminal offense).

Although you have not raised any other applicable exception, we must consider whether the remaining information, not subject to sections 552.108 and 552.117, should be excepted from required public disclosure under sections 552.101 and 552.130 of the Government Code.(3) Therefore, we will next address the applicability of exceptions that prohibit the release of confidential information. See Gov't Code 552.352. All of the requested information not specifically addressed below and not subject to withholding under sections 552.108 and 552.117 must be released to the requestor in its entirety.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. If the information submitted for our review contains criminal history record information ("CHRI") that is generated by the Texas Crime Information Center ("TCIC") or the National Crime Information Center ("NCIC") it must not be publicly released. The dissemination of CHRI obtained from the NCIC network is limited by federal law. See 28 C.F.R. 20.1; Open Records Decision No. 565 at 10-12 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Open Records Decision No. 565 at 10-12 (1990). Sections 411.083(b)(1) and 411.089(a) of the Government Code authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release the CHRI except to another criminal justice agency for a criminal justice purpose, Gov't Code 411.089(b)(1). Thus, any CHRI generated by the federal government or another state may not be made available to the requestor except in accordance with federal regulations. Furthermore, any CHRI obtained from the Texas Department of Public Safety or any other criminal justice agency must be withheld as provided by Government Code chapter 411, subchapter F. Therefore, any CHRI that falls within the ambit of these state and federal regulations must be withheld from the requestor.

We next note that included among the submitted information you seek to withhold is an accident report form that appears to have been completed pursuant to chapter 550 of the Transportation Code. See Transp. Code 550.064 (officer's accident report). We note that section 550.065 of the Transportation Code concerns the disclosure of accident report information. However, a Travis County district court has issued a temporary injunction enjoining the enforcement of the amendment to section 550.065 of the Transportation Code. Texas Daily Newspaper Ass'n v. Morales, No. 97-08930 (345th Dist. Ct., Travis County, Tex., Oct. 24, 1997) (second amended agreed temporary injunction). A temporary injunction preserves the status quo until the final hearing of a case on its merits. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 617, 358 S.W.2d 589 (1962). The Supreme Court has defined the status quo as "the last, actual peaceable, non-contested status that preceded the pending controversy." Texas v. Southwestern Bell Tel. Co. 526 S.W.2d 526, 528 (Tex. 1975). The status quo of accident report information prior to the enactment of S.B. 1069 is governed by section 47 of article 6701d, V.T.C.S.(4)

Section 47(b)(1) provides that:

The Department or a law enforcement agency employing a peace officer who made an accident report is required to release a copy of the report on request to:

. . . .

(D) a person who provides the Department or the law

enforcement agency with two or more of the following:

(i) the date of the accident;

(ii) the name of any person involved in the accident; or

(iii) the specific location of the accident

V.T.C.S. art. 6701d, 47(b)(1) (emphasis added). Under this provision, a law enforcement agency "is required to release" a copy of an accident report to a person who provides the law enforcement agency with two or more pieces of information specified by the statute. Id. In the situation at hand, the requestor has not provided the department with the required information. Therefore, you must withhold the submitted accident report from the requestor.

Finally, we note that section 552.130 excepts information relating to a driver's license and motor vehicle record issued by an agency of this state. You must withhold such information under section 552.130. In conclusion, all of the requested information not specifically addressed above and not subject to withholding under the applicable exceptions to required public disclosure must be released to the requestor in its entirety.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely

Sam Haddad
Assistant Attorney General
Open Records Division

SH/nc

Ref.: ID# 124260

Encl.: Submitted documents

cc: Mr. Marty Case
445 E. Walnut Street
Richardson, Texas 75081
(w/o enclosures)


 

Footnotes

1. You also claim that chapter 143 of the Local Government Code excepts some of the submitted information from public disclosure. You do not explain how the chapter applies to except the information nor can we discern the applicability of chapter 143. Therefore, you may not withhold any of the requested information under chapter 143.

2. Pursuant to section 552.301(b)(3), a governmental body is required to submit to this office a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents.

3. The Office of the Attorney General will raise an exception on behalf of a governmental body when necessary to protect third-party interests. See generally Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

4. Although the Seventy-fourth Legislature repealed and codified article 6701d as part of the Transportation Code, the legislature did not intend a substantive change of the law but merely a recodification of existing law. Act of May 1, 1995, 74th Leg., R.S., ch. 165, 24, 25 1995 Tex. Gen. Laws 1025, 1870-71. Furthermore, the Seventy-fourth Legislature, without reference to the repeal and codification of V.T.C.S. article 6701d, amended section 47 of article 6701d, V.T.C.S., relating to the disclosure of accident reports. Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413, 4414. Because the repeal of a statute by a code does not affect an amendment of the statute by the same legislature which enacted the code, the amendment is preserved and given effect as part of the code provision. Gov't Code 311.031(c). Thus, the amendment of section 47 of article 6701d, V.T.C.S. is the existing law regarding the availability of accident report information, and may be found following section 550.065 of the Transportation Code. See also Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413, 4414.
 

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