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May 2, 2000

Ms. Elaine Hengen
Assistant City Attorney
Office of The City Attorney
The City of El Paso
2 Civic Center Plaza
El Paso, Texas 79901-1196

OR2000-1692

Dear Ms. Hengen:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134815.

The City of El Paso Police Department (the "department") received a request for a copy of a specified internal affairs investigation report and a separate request for that report and information which would identify the officers who responded to the incident that was the basis of the complaint investigated. You indicate that you have released "a copy of the incident report, the letter sent out to Mr. Rangel informing him of the outcome of the investigation, and a redacted copy of the notice of suspension contained in the [internal affairs investigatory] file."(1) You seek to withhold other responsive information, asserting that it is excepted from disclosure under sections 552.101, 552.103, 552.108, 552.117, and 552.130 of the Government Code. You have submitted a representative sample of the information you seek to withhold to this office for review.(2) We have considered the exceptions you claim and reviewed the submitted information.

Section 552.103(a), the "litigation exception," excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. The governmental body claiming this exception has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). Further, to be excepted under section 552.103, the information must relate to litigation that is pending or reasonably anticipated on the date that the information was requested. Gov't Code 552.103(c).

You have supplied a copy of a claim letter, which you identify as exhibit G, received from an attorney who represents an individual who was involved in the subject incident. You indicate that this letter was received by the city on March 4, 1999. You acknowledge that this claim letter complies with the notice requirements of Chapter 1 of the Civil Practices and Remedies Code, the Texas Tort Claims Act, and applicable City of El Paso ordinances. Your signed statement indicates that the requests for information were received on February 16, 2000 and February 18, 2000. Thus, the city's receipt of a notice of claim acknowledged to comply with pertinent notice requirements predates the city's receipt of the requests for information. Therefore, you have established that the city reasonably anticipated litigation at the time it received the requests for information. See Open Records Decision No. 638 (1996) (fact that governmental body received claim letter that it represents to this office to be in compliance with notice requirements of Texas Tort Claims Act, Civ. Prac. & Rem. Code ch. 101, or applicable municipal ordinance shows that litigation is reasonably anticipated). We have reviewed the submitted information and find that it relates to this anticipated litigation. We conclude that most of the submitted information may be withheld pursuant to Government Code section 552.103.

However, even where litigation is reasonably anticipated, basic factual information about a crime or arrest must be released. Open Records Decision No. 362 (1983). You indicate that you have released a copy of "the incident report," and redacted copies of the notice of suspension. We assume that all basic information has therefore been released. Also, absent special circumstances, where the opposing party to the anticipated litigation has had access to the records at issue, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Further, the applicability of section 552.103(a) ends once the litigation has concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

With the exceptions noted above, the submitted information may be withheld under section 552.103 of the Government Code. Because we make a determination under section 552.103, we need not address your other claimed exceptions at this time.

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,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/nc

Ref: ID# 134815

Encl Submitted documents

cc: Mr. Eduardo Solis
1009 Montana Avenue
El Paso, Texas 79902
(w/o enclosures)

Mr. I.R. Sanchez
2001 Montana Avenue, Suite A
El Paso, Texas 79903
(w/o enclosures)


 

Footnotes

1. You indicate that you have redacted the officer's social security number. This information must be withheld. Gov't Code 552.117(2). This redaction is therefore proper.

2. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
 

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