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June 14, 1999

Ms. Joni M. Vollman
Assistant General Counsel
Office of the District Attorney
201 Fannin, Suite 200
Houston, Texas 77002-1901

OR99-1653

Dear Ms. Vollman:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 124974.

The Office of the District Attorney (the "DA") received a request for the file in criminal case No. 97-17591. You indicate that you will release certain documents and that you wish to withhold the remaining documents. You submit to this office the remaining documents that you wish to withhold. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the documents submitted as Exhibits A and B.

You first argue that the information in Exhibit A is excepted from disclosure by section 552.108. Section 552.108 of the Government Code provides in part:

    (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:

    . . .

      (3) it is information that:

        (A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

        (B) reflects the mental impressions or legal reasoning of an attorney representing the state.

        . . .

    (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 under section 552.108 must reasonably explain, if the information does not supply the explanation on its face, how and why section 552.108 is applicable. See Gov't Code 552.108, .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). Exhibit A consists of the cover folder of the prosecutor's file, handwritten notes and notations of prosecutors, and the Harris County D.A.'s Intake Form. You assert that the documents in Exhibit A constitute the prosecutor's work product. After examining Exhibit A, we find that the documents reflect the mental processes of the prosecutors. Therefore, you may withhold these records in Exhibit A under section 552.108(a)(3) of the Government Code.

You argue that the material in Exhibit B must be withheld under section 552.101. Section 552.101 of the Government Code excepts from disclosure "information deemed confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. The information submitted for our review does appear to contain criminal history record information ("CHRI") generated by the Texas Crime Information Center ("TCIC") or the National Crime Information Center ("NCIC"). 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 information except to another criminal justice agency for a criminal justice purpose, Gov't. Code 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. 411.090-127. 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, see Open Records Decision No. 565 (1990), and any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F.

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,

Emilie F. Stewart
Assistant Attorney General
Open Records Division

EFS\nc

Ref: ID# 124974

encl: Submitted documents

cc: Ms. Susan Taylor
Bond & Taylor, L.L.P.
1021 Main Street, Suite 1220
Houston, Texas 77002
(w/o enclosures)


 

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