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April 3, 2000

Mr. Blake E. Armstrong
Potter, Minton, Roberts, Davis & Jones
Attorneys at Law
110 North College Street
Tyler, Texas 75702

OR2000-1281

Dear Mr. Armstrong:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134115.

The City of Eustace (the "city") received a request for information which identifies seven items, including a specified search warrant and probable cause affidavit, which you state that you have released to the requestor. You have not released and seek to withhold: "documentation used by the Affiant in preparing" the affidavit, any other information in whatever form it may exist used in preparing the affidavit, the names of the persons who typed the warrant and affidavit, and a "certified copy of all investigation files" in the possession of the City of Eustace and Henderson County. The requestor also asks to be allowed to view the computer entries evidencing typing of the warrant and affidavit and asks to be informed of the completion of the investigation. The city objects to those requests as well. You claim that the requested information is excepted from disclosure under section 552.108 of the Government Code.

Pursuant to section 552.301(e) of the Government Code, a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. You did not, however, submit to this office copies or representative samples of the specific information requested which you seek to withhold.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code 552.302); Open Records Decision No. 319 (1982). You have not shown such a compelling interest to overcome the presumption that the information at issue is public. Accordingly, you must release the requested information.(1) We caution that the distribution of confidential information constitutes a criminal offense. Gov't Code 552.352.

We note that we do not address any information not collected, assembled, or maintained by the city. See Gov't Code 552.002(a). The requestor should seek Henderson County information from Henderson County; although, in the interests of open government, the city is certainly encouraged to forward such requests to the appropriate county authority.

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,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/ljp

Ref: ID# 134415

cc: Mr. Michael Collins
104 FM 316 South
Eustace, Texas 75124
(w/o enclosures)


 

Footnotes

1. The city is not required to answer general questions or perform research for a requestor in order to comply with a Public Information Act request, nor is it required to supply information which does not yet exist. See Open Records Decision Nos. 563 at 8 (1990) (considering request for federal and state laws and regulations), 555 at 1-2 (1990) (considering request for answers to fact questions), 452 at 2-3 (1986) (information not in existence at time of request), 342 at 3 (1982), 87 (1975). Therefore, the Public Information Act does not require the city to respond to item 5 and that portion of item 7 that requests notification of the completion of the investigation; although, of course, the city is not prohibited from responding.
 

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