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August 31, 1999

Lieutenant Brad Lancaster
Amarillo Police Department
200 E. 3rd
Amarillo, Texas 79101-1514

OR99-2389

Dear Lieutenant Lancaster:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 127082.

The Amarillo Police Department (the "department") received a request for all investigation and jail reports that name a certain individual as a suspect. You assert that the requested report is excepted from required public disclosure under sections 552.101 and 552.108 of the Government Code.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." The submitted information includes information protected by common-law privacy which is encompassed in section 552.101. For information to be protected from public disclosure by the common-law right of privacy under section 552.101, the information must meet the criteria set out in Industrial Foundation v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). In Industrial Foundation, the Texas Supreme Court stated that information is excepted from disclosure if (1) the information contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person and (2) the information is not of legitimate concern to the public. 540 S.W.2d at 685. In United States Department of Justice v. Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989), the U.S. Supreme Court concluded that where an individual's criminal history record information ("CHRI") is compiled or summarized by a governmental entity, the information takes on a character that implicates an individual's right of privacy in a manner that the same individual records in an uncompiled state do not. Thus, to the extent that the department has records in which the named individual is a possible suspect, we conclude that the department must withhold this information under section 552.101 of the Government Code. See id.; see also Gov't Code 411.106(b). We have marked the information that you must withhold as private information under section 552.101.

Section 552.101 also encompasses information protected by other statutes. Section 261.201 of the Family Code reads in part as follows:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

We believe that offense report number 93-62714 is a report, record, or working paper used or developed in an investigation made under chapter 261 of the Family Code. Because you have not cited any specific rule that the investigating agency has adopted with regard to the release of this type of information, we assume that no such regulation exists. Given that assumption, the requested information is confidential pursuant to section 261.201 of the

Family Code. See Open Records Decision No. 440 at 2 (1986) (construing predecessor statute). Accordingly, you must not release offense report number 93-62714 to the requestor.

The responsive information also includes two accident reports. The Seventy-fifth Legislature repealed article 6701d of the Texas Civil Statutes and amended section 550.065 of the Transportation Code concerning the disclosure of accident report information. Act of May 29, 1997, 75th Leg., R.S. ch. 1187, 1997 Tex. Sess. Law Serv. 4575 (Vernon) (to be codified at Transp. Code 550.065). 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, 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.(1)

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). 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. The information is otherwise confidential. The requestor has not supplied the requisite two pieces of information. Because the requestor has not complied with section 47(b)(1) of article 6701d, you need not release the two accident reports.

Lastly, you assert that section 552.108 excepts the remaining offense reports from public disclosure. Section 552.108 of the Government Code reads in 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[.]

. . .

(b) An internal record or notation of a law enforcement agency or

prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if:

(1) release of the internal record or notation would interfere with law enforcement or prosecution;

(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.]

This office applies section 552.108(a)(1) when a requested offense report pertains to an ongoing investigation or prosecution. A governmental body claiming section 552.108(a)(2) should demonstrate that the requested information relates to a concluded criminal case that reached some type of final result other than a conviction or deferred adjudication. You appear to assert that section 552.108(a)(2) excepts the remaining offense reports from public disclosure because the criminal cases concluded in a final result other than a conviction or deferred adjudication. Thus, we conclude that section 552.108(a)(2) excepts the remaining offense reports from public disclosure.

However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. Gov't Code 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle Publishing Co. 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). Thus, with the exception of the basic front page offense and arrest information, you may withhold the remaining offense reports from disclosure based on section 552.108(a)(2). We note that you have the discretion to release all or part of the remaining information that is not otherwise confidential by law. Gov't Code 552.007.

We are resolving this matter with this 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 may not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/nc

Ref.: ID# 127082

Encl.: Marked documents

cc: Ms. Mary Mitchell
Legal Assistant
Underwood, Wilson, Berry, Stein & Johnson, P.C.
P.O. Box 9158
Amarillo, Texas 79105-9158
(w/o enclosures)


 

Footnotes

1. 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. Sess. Law Serv. 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. Sess. Law Serv. 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. Sess. Law Serv. 4413, 4414.
 

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