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April 3, 2000

Ms. Kimberley Mickelson
Olson & Olson
Three Allen Center, Suite 3485
333 Clay Street
Houston, Texas 77002

OR2000-1264

Dear Ms. Mickelson:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 133810.

The City of Friendswood received two requests for information seeking the disclosure of (1.) "All cad [sic] reports, investigative reports, offensive [sic] reports relating to the address of 2218 N. Mission and/or anyone with the last name of Layton in the year 2000" and (2.) "All police communications recorded on from [sic] January 14, 2000 11:30 pm [sic] until January 15, 2000 12:30 am [sic]." You assert that both requests concern the same incident. You claim that the information is excepted from disclosure under section 552.108 of the Government Code.(1) We have considered the exception you claim and reviewed the submitted information.

Initially, we note that you seek to withhold the relevant document and tape because they are in "active use." Section 552.221(c) addresses the issue of "active use" and states that "[i]f the requested information is unavailable at the time of the request to examine because it is in active use or in storage, the officer for public information shall certify this fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication." See Open Records Decision Nos. 225 (1979) (a secretary's handwritten notes are in "active use" while the secretary is typing minutes of a meeting from them), 148 (1976) (a faculty member's file is not in "active use" the entire time the member's promotion is under consideration), 96 (1975) (directory information about students is in "active use" while the notice required by the federal Family Educational Rights and Privacy Act of 1974 is being given), and 57 (1974) (a file containing student names, addresses and telephone numbers is in "active use" during registration). We do not find the requested information to be in "active use" for the purposes of the Public Information Act.

In the briefs you submitted, you claim exception under sections 552.108 (a)(1), 552.108(a)(2), 552.108(b)(1) and 552.108(b)(2). Section 552.108 of the Government Code reads, in pertinent 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; or

...

(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; or

. . .

(emphasis added). 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, .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that you have submitted all documents responsive to this request. You explain that the requested documents relate to an ongoing investigation. In her memorandum to you on this matter, Ms. Karen Peterson, Police Records Specialist, states that the records relate to an ongoing internal affairs investigation. However, the only document you submitted consists of the CAD call information. Thus, it appears that there have been no arrests made or charges filed relating to this incident and there is no existing offense report. Therefore, we find no evidence, based on the audiotape and document submitted, to support a claim of an active criminal investigation that would except this information under sections 552.108(a)(1) or 552.108(a)(2).

You also claim that section 552.108(b) excepts the information from disclosure because there is an ongoing internal affairs investigation. You do not, however, reasonably explain how this subsection applies to the information at hand. Because you have not met your burden under section 552.108, you may not withhold the audiotape from public disclosure.

Furthermore, 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 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). We conclude that the document submitted to this office contains nothing more than basic information.

In conclusion, based on the arguments and information submitted to this office, we find section 552.108 inapplicable to the information submitted. You must release the information to the requestor.

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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/nc

Ref: ID# 133810

Encl. Submitted documents

cc: Mr. Jeff Branscome
208 Woodstream Circle
Friendswood, Texas 77546
(w/o enclosures)


 

Footnotes

1. In your brief, you claim exception under section 551.108 of the Government Code. We assume for the purposes of this ruling that you are actually referring to section 552.108 of the Government Code.
 

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