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May 16, 2000

Ms. Laura Garza Jimenez
County Attorney
Nueces County Courthouse
901 Leopard, Room 207
Corpus Christi, Texas 78401-3680

OR2000-1943

Dear Ms. Jiminez:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135229.

The Nueces County Sheriff's Department (the "department") received a request for "[a]ny and all reports, video tapes, audio tapes, or any other documents relating to an assault inside the Nueces County Jail in the early morning hours of February 20, 2000, involving 4 jail guards an and [sic] inmate." You indicate that you have already released to the requestor an offense report relating to the alleged assault by the inmate.(1) You inform us that the requestor does not seek information related to the offense for which the inmate was originally charged. You assert that a "jail video" and witness statements provided to the Criminal Investigation Division ("CID") are excepted from disclosure by section 552.108 of the Government Code.

You indicate that you submitted to this office a videotape related to the incident which took place at the jail facility (the "jail video"). However, as of this date, we have not received a videotape from your office. A governmental body must submit information it claims to be excepted from public disclosure no later than the fifteenth business day after the governmental body receives the request for information. Gov't Code 552.301(e).

You also state:

It has been reported to us that CID is conducting an on-going investigation into an alleged assault on Ralph Torres. As of this date, the investigating officer has placed preliminary information into a computer database in a 'review only' report mode. This means that only the officer conducting the on-going investigation has access to the data and the capability of printing a working copy of the information relating to the investigation. Once the officer's report is finalized, it is taken out of 'review mode' and is available to all agencies on the records management system . . .. This report will be delivered to the requestor upon completion.

We assume that the "preliminary information" to which you refer had been entered into the database and therefore existed as of the date that the department received the request for information at issue.(2) Based upon that assumption, we believe that the "preliminary information" constitutes information that is responsive to the present request. You indicate that you will release the "preliminary information" when the investigator's report is completed, in accordance with the Public Information Act. However, you affirmatively state that the department has the capability of "printing a working copy of the information relating to the investigation." You have not submitted a copy of such information for our review.(3)

Pursuant to section 552.302 of the Government Code, a governmental body's failure to timely 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. Gov't Code 552.302 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 ask that we determine the applicability of section 552.108 to the information relating to the on-going investigation. However, you indicate that the information will be part of the officer's completed report, which you state the department will release to the requestor. You make no argument that the release of the "preliminary information" will interfere with the investigation or prosecution of the case. You have not demonstrated a compelling reason under section 552.108 to overcome the presumption that the jail video is subject to required release. See Open Records Decision No. 586 (1991). Thus, you may not withhold from the requestor the preliminary information, nor may you withhold the jail video under section 552.108. Therefore, you must release this information to the requestor.

As to the information you timely submitted for our review, we next address the section 552.108 assertion. Section 552.108 of the Government Code states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code 552.108(a)(1). You indicate that an ongoing investigation is being conducted by CID into the alleged assault on the inmate by department personnel. Based upon this representation, we believe that the release of the submitted information "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 present in active cases). Although section 552.108(a)(1) authorizes you to withhold the witness statements from disclosure, you may choose to release them to the requestor. See Gov't Code 552.007.

The offense report that you have submitted to this office concerns the alleged "Aggravated Assault on a Peace Officer." You state that this "is the only offense report concerning the incident in question" and that this information "is being contemporaneously sent to the requestor." Once a governmental body elects to release information to a member of the public, such information must subsequently be "made available to any person." See Gov't Code 552.007(b). Based on your representation that the offense report has been released to the requestor, this information may not be withheld under section 552.108.(4) We also note, however, that the act provides criminal penalties for the improper release of confidential information. Gov't Code 552.352. We have identified certain information on the front page of the offense report that, if released, implicates this provision.

We note that the first page of the offense report contains information protected from disclosure by sections 552.101, 552.117(2) and 552.130 of the Government Code. The social security number in the document may be confidential if it was obtained or is maintained by the department pursuant to any provision of law, enacted on or after October 1, 1990. 42 U.S.C. section 405(c)(2)(C)(vii); see Open Records Decision No. 622 (1994). The submitted information also contains a driver's license number. Section 552.130 of the Government Code excepts information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. Therefore, you must withhold the driver's license number. Section 552.117(2) of the Government Code excepts from public disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members. The term "peace officer" is used as defined by article 2.12 of the Code of Criminal Procedure. See Open Records Decision No. 622 (1994). The submitted offense report information contains a home telephone number of a department peace officer. This information must be withheld from disclosure under section 552.117(2) of the Government Code. For your convenience, we have marked the information that must be withheld from disclosure under sections 552.117(2) and 552.130.

In summary, because you did not timely submit the information to our office for review, you must release to the requestor the "preliminary information"in the department's database and the jail video. You may withhold from disclosure the witness statements under section 552.108(a)(2). If you have already released the offense report submitted for our review, you may not withhold it from disclosure under section 552.108. However, certain information in the offense report may be or is confidential by law and must, hereafter, be withheld. Specifically, you must withhold the social security number contained in the report if the number was obtained or is maintained by the department pursuant to any provision of law enacted on or after October 1, 1990. Additionally, you must withhold the driver's license number under section 552.130 and the peace officer's home telephone number under section 552.117(2) of the Government Code.

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,

Carla Gay Dickson
Assistant Attorney General
Open Records Division

CGD/ljp

Ref: ID# 135229

Encl. Submitted documents

cc: Ms. Nicole Perez
KZTV 10
P.O. Box TV-10
Corpus Christi, Texas 78403
(w/o enclosures)


 

Footnotes

1. You have nevertheless submitted for our review what appears to be the first page of the offense report (see the discussion below pertaining to this information).

2. It is implicit in several provisions of the Public Information Act (the "act") that the act applies only to information already in existence. See Gov't Code 552.002, .021, .227, .351. Thus, the request for information at issue does not encompass information that is created subsequent to the department's receipt of the request. Attorney General Opinion JM-48 (1983); Open Records Decision Nos. 476 at 1 (1987), 465 at 1 (1987) (governmental body not required to comply with continuing request to supply information on continuing basis).

3. Because you separately address the "sworn statements," we assume that these statements (which you have provided for our review) are not among the types of information that you describe as "preliminary information" that is in "review mode." You also do not represent to this office, nor is it apparent, that the information you have provided for our review is representative of the responsive information as a whole. See Gov't Code 552.301(e)(1)(D) (governmental body must provide attorney general the specific information requested, or representative samples if a voluminous amount was requested).

4. If the offense report has not been released to the requestor or to any other member of the public, we nevertheless note that information normally found on the front page of an offense report is not excepted from disclosure by section 552.108, as such information constitutes basic information about an arrested person, an arrest, or a crime. See Gov't Code 552.108(c); 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); Open Records Decision No. 127 (1976).
 

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