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November 22, 1999

Lieutenant Arturo Valdez
McAllen Police Department
1501 Pecan Boulevard
McAllen, Texas 78501

OR99-3342

Dear Lieutenant Valdez:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 130206.

The McAllen Police Department (the "department") received a request for forty-one different offense reports. You claim that the requested information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.301 of the Government Code dictates the procedure that a governmental body must follow if it wishes to ask the attorney general for a decision determining whether requested information falls within an exception to disclosure. Among other requirements, the governmental body must submit to the attorney general a copy of the specific information requested or, if the information requested is voluminous, a representative sample of the information. Act of May 25, 1999, 76th Leg., R.S., ch 1319, 20, 1999 Tex. Sess. Law Serv. 4500, 4508-4509 (Vernon) (to be codified as an amendment to Tex. Gov't Code 552.301(e)(1)(D)). If the governmental body fails to follow this procedure, the requested information "is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." Act of May 25, 1999, 76th Leg., R.S., ch 1319, 21, 1999 Tex. Sess. Law Serv. 4500, 4509 (Vernon) (to be codified as an amendment to Tex. Gov't Code 552.302).

The request for information in this case asks for forty-one specified offense reports. However, you have only submitted fourteen of the requested reports to this office. Your letter neither states that the submitted information is a representative sample of all of the requested documents, nor does it offer any explanation as to why the department failed to submit twenty-seven of the requested reports. Consequently, the twenty-seven reports that were requested but not submitted to this office are subject to required public disclosure and must be released to the requestor absent compelling reasons to withhold these reports.

The remainder of this letter-ruling pertains to the fourteen offense reports that the department did submit to this office. Section 552.108(a)(1) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime." 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 the release of the requested information would interfere with law enforcement. See Gov't Code 552.108(a)(1), (b)(1), .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).

You state that all fourteen of the submitted reports relate to ongoing criminal cases. However, offense report number 96-058633 states in the supplemental narrative entered on October 21, 1996 that the case is closed. Moreover, the offense described in the report is harassment: a crime generally designated as a misdemeanor. Penal Code 42.07. As the statute of limitation for this crime expired in October 1998, the department now would be unable to prosecute this matter even if the case were reopened. See Code Crim. Proc. art. 12.02. You have not explained how or why release of report number 96-058633 would interfere with the investigation of an offense for which the statute of limitations has run and for which the investigation is apparently closed. Thus, we conclude that you may not withhold offense report number 96-058633 under section 552.108(a)(1).

As for the remainder of the submitted reports, we find nothing that contradicts your representation that they pertain to ongoing criminal investigations. Therefore, based upon your representation, we conclude that the release of these thirteen reports would interfere with the detection, investigation, or prosecution of crime. See 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).

We note, however, that information normally found on the front page of an offense report is generally considered public. See generally Gov't Code 552.108(c); 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); Open Records Decision No. 127 (1976). Thus, you must release the type of information that is considered to be front page offense report information, even if this information is not actually located on the front pages of the submitted reports. Although section 552.108(a)(1) authorizes you to withhold the remaining information in these reports from disclosure, you may choose to release all or part of the information that is not otherwise confidential by law.(1) See Gov't Code 552.007.

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,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF\nc

Ref: ID# 130206

Encl: Submitted documents

cc: Mr. Thomas E. Jones
Andrews Michael Investigations
P.O. Box 1066
Lutz, Florida 33548
(w/o enclosures)


 

Footnotes

1. We note that offense report number 96-024992 concerns an allegation of sexual assault. Section 552.101 of the Government Code in conjunction with common-law privacy makes confidential the identity of sexual assault victims. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683 (Tex. 1976), cert. denied, 430 U.S. 931 (1977); see also Open Records Decision Nos. 393 (1983), 339 (1982). The name that appears on the offense report seems to be a pseudonym. If that is the case, then there is no privacy concern in regard to the offense report. However, if the name that appears on the report is the actual victim's name, then the department must withhold the victim's identity pursuant to common-law privacy as encompassed within section 552.101.
 

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