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March 20, 2000

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

OR2000-1089

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# 133421.

The City of McAllen (the "city") received a request for all police offense reports and photographs regarding a certain McAllen address and all police offense reports and photographs regarding two named individuals. The responsive information consists of three 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 552.108(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." 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 the submitted information pertains to criminal investigations that are "ongoing, and therefore release of information related to the city's investigation[s] would interfere with the department's ability to properly investigate and/or prosecute the criminal activity involved in the records." However, the theft and the burglary of a habitation offenses described in two of the reports, numbers 91-045182 and 90-023594, respectively, can no longer be prosecuted because the five-year statute of limitations has run on both offenses. See Code Crim. Proc. art. 12.01(4)(A). You have not explained how or why release of these reports would interfere with criminal cases when the statute of limitations has run. Thus, we conclude that the city may not withhold offense report numbers 91-045182 and 90-23594 under section 552.108(a)(1). Consequently, you must release these reports to the requestor.

As for the third incident report, number 98-018428, the statute of limitations has not run. However, we note that this report indicates that its status is "suspended." Moreover, the narrative on this report states, "This case is suspended due to no solvability factors." While it is difficult to fathom how such a report could relate to an ongoing criminal case, you nevertheless state that the investigation is ongoing and that release of the report would interfere with the investigation. We will accept your representation that report number 98-018428 pertains to an ongoing criminal case and conclude that the release of this report in its entirety 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). Consequently, we find that report number 98-018428 is subject to section 552.108(a)(1). However, we emphasize that if report number 98-018428 does not actually pertain to an ongoing criminal investigation or prosecution, then section 552.108(a)(1) does not except the report and the city must release the report to the requestor.

We note 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. pp.--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, the city 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 page of report number 98-018428. Although section 552.108(a)(1) authorizes you to withhold the remaining information in that report from disclosure, you may choose to release all or part of the report that is not otherwise confidential by law. See Gov't Code 552.007.

In conclusion, the city must release report numbers 91-045182 and 90-023594 in their entirety. As for report number 98-018428, the city must release the basic, front-page information. However, if report number 98-018428 does not pertain to a criminal investigation or prosecution that is actually ongoing, then the city must release report number 98-018428 in its entirety.

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

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Ref: ID# 133421

Encl: Submitted documents

cc: Mr. Daniel Longoria
State Farm Lloyds
P.O. Box 531768
Harlingen, Texas 78553-1768
(w/o enclosures)


 

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