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November 8, 1999

Mr. Michael L. Scanlon
Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P.
3000 Bank One Center
1717 Main Street
Dallas, Texas 75201-4335

OR99-3146

Dear Mr. Scanlon:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 130758.

The Town of Flower Mound (the "town") received a request for information regarding an arrest for possession of marijuana. You claim that some of the information is excepted from disclosure under section 552.108 and section 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.108 provides in pertinent part:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [required public disclosure] . . . 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; or

(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.

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(a)(1),(b)(1), 552 .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You have not stated that the requested information pertains to an ongoing criminal investigation or prosecution nor have you explained how its release would interfere with the detection, investigation, or prosecution of crime. See Gov't Code 552.108(a)(1). We conclude that you have not met your burden of establishing that the release of the requested information at this time could interfere with law enforcement or prosecution. See, e. g., Houston Chronicle Publ'g 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) (court delineates law enforcement interests that are present in active cases); Open Records Decision No. 216 (1978). Therefore, you may not withhold the information under section 552.108(a)(1). Because the case resulted in a sentencing, the information is not "in relation to an investigation that did not result in conviction or deferred adjudication," so you may not withhold it under section 552.108(a)(2).

The documents you sent us as responsive to the request consist of an offense report, an "Investigative Supplement Report," two probable cause affidavits, and a warning of rights and setting of bail. None of these documents was prepared by an attorney representing the state, nor do any of the documents "reflect the mental impressions or legal reasoning of an attorney representing the state." Therefore, you may not withhold the documents under section 552.108(a)(3).

Next, you assert the section 552.130 of the Government Code excepts some of the requested information from public disclosure. We note that the interest protected under section 552.130 is a privacy interest which does not apply when the person seeking the information is the person the provision is designed to protect. See Gov't Code 552.023. As the requestor is the subject of the concluded investigation, there is no privacy interest served by withholding his driver's license information and license plate number from him. The town must release the driver's license information and license plate number to the requestor.

Since you have not shown the applicability of section 552.108, the requested information may not be withheld on that basis. Having demonstrated no other applicable exception to required disclosure, the town must release the requested information 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,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/ch

Ref: ID# 130758

Encl. Submitted documents

cc: Mr. Eric C. Nordstrom
1001 Speight Avenue #118
Waco, Texas 76706
(w/o enclosures)


 

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