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January 19, 2000

Mr. Joe F. Grubbs
Ellis County and District Attorney
Ellis County Courthouse
Waxahachie, Texas 75165-3759

OR2000-0168

Dear Mr. Grubbs:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131318.

The Ellis County Sheriff's Department (the "department") received a request for all records in the possession of the sheriff's department concerning the arrest, detention, and prosecution of a named individual. You claim that the responsive information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information.

Section 552.108(a)(1) 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." You state that the documents at issue pertain to an ongoing criminal case in that the State is currently litigating the defendant's challenge to his capital sentence. We believe that where a prosecuting attorney is seeking to defend a direct challenge of a sentence passed down by a trial court, such actions by the attorney constitute the "prosecution" of a criminal matter for purposes of section 552.108(a)(1). We conclude, therefore, that so long as the current action is pending, the department may withhold the requested records from the public until such time that the records are introduced into evidence during the court proceedings. See Gov't Code 552.022(17) (information contained in public court record not excepted from public disclosure); cf. Star-Telegram v. Walker, 834 S.W.2d 54 (Tex. 1992) (information in public court record not protected by common law privacy).

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, in regard to the submitted arrest reports, you must release the type of information that is considered to be front page offense report information to the extent that it appears in these documents.(2) Therefore, with the exception of the basic front page offense information, the department may withhold the submitted documents and photographs under section 552.108(a)(1). Although section 552.108(a)(1) authorizes the department to withhold this information from disclosure, the department may choose to release all or part of the information that is not otherwise confidential by law. See Gov't Code 552.007.(3)

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF\nc

Ref: ID# 131318

Encl: Submitted documents

cc: Mr. Raoul Schonemann
Schonemann, Rountree & Owen, LLP
510 South Congress Avenue, Suite 308
Austin, Texas 78704
(w/o enclosures)


 

Footnotes

1. You state that the only responsive documents in the possession of the sheriff's department are two arrest reports and the arrest photographs. In regard to these documents, you raise sections 552.103 and 552.108. You also state that the sheriff's department has not yet located any medical records that would be responsive to the request. In regard to any medical records that the sheriff's department might prospectively find, you raise section 552.101. This ruling only pertains to the records that have been submitted to this office.

2. We note that the photographs do not contain basic information.

3. Because section 552.108 is dispositive of this matter, we do not address your argument pertaining to section 552.103 other than to note that section 552.103 also does not except basic information.
 

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