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May 26, 2000

Mr. Jeffrey L. Schrader
Assistant Criminal District Attorney
County of Bexar
300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

OR2000-2098

Dear Mr. Schrader:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135627.

The Bexar County Criminal District Attorney's Office (the "district attorney") received a request for "copies of any and all directives, memoranda, letters, e-mails or other records, including written memoranda of telephone conversations," maintained by the district attorney from 1973 to the present in relation to a specific individual, including all records related to the individual's involvement in a particular criminal case. In response to this request, you have submitted a copy of the district attorney's case file for Cause Number 83-CR-1099.(1) You claim that the submitted case file is excepted from disclosure under sections 552.108 and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the information at issue.

Initially, we address the requestor's argument that the district attorney did not timely submit its request for a ruling; so that the requested information is presumed public and must be released. See Gov't Code 552.302 (providing that if governmental body does not timely request a ruling, requested information must be released unless there is a compelling reason to withhold); see also Gov't Code 552.304 (providing that interested person may submit written comments to attorney general stating why requested information should be released or withheld). Section 552.301(b) provides that a governmental body must ask for an attorney general's decision and state the exceptions that apply within a reasonable time but not later than the tenth business day after the date of receiving the written request. In this instance, you assert that the district attorney received the request for information on March 13, 2000. However, the requestor argues and has submitted evidence that the district attorney actually received the request on March 10, 2000. The district attorney submitted its request for a ruling on March 22, 2000. In that request, you argue that the responsive information is excepted from disclosure under section 552.111. Since March 22 is within ten business days of both March 10 and March 13, we conclude that the district attorney timely submitted its arguments under section 552.111. See Gov't Code 552.308 (stating that timeliness requirement is met if document bears post office cancellation mark indicating that it was deposited within specified time period). Therefore, we will address your arguments under that exception.

However, the district attorney also submitted a supplemental brief to this office, postmarked March 28, 2000, in which you argue that the requested information is also excepted from public disclosure under section 552.108. March 28 is not within ten business days of either March 10 or March 13. Consequently, you failed to timely raise section 552.108 within the ten business day deadline imposed by section 552.301(b). Since section 552.108 is a "permissive exception," which grants to the governmental body the discretion to either release or withhold the information, it is waived by a governmental body's failure to timely raise the exception. See Open Records Decision No. 177 (1977); see also Open Records Decision No. 586 (1991). Accordingly, we conclude that the district attorney has waived the protection of section 552.108 in this instance and, therefore, we do not address your argument under that exception.

You contend that all the information submitted to this office for review is protected as attorney work product as encompassed by section 552.111. In Open Records Decision No. 647 (1996), this office held that a governmental body may withhold information under section 552.111 if the governmental body can show 1) that the information was created for civil trial or in anticipation of civil litigation under the test articulated in National Tank v. Brotherton, 851 S.W.2d 193 (Tex. 1993), or after a civil lawsuit is filed, and (2) that the work product consists of or tends to reveal an attorney's "mental processes, conclusions, and legal theories." Open Records Decision No. 647 at 5 (1996) .

The work product doctrine is applicable to litigation files in criminal as well as civil litigation. Curry v. Walker, 873 S.W.2d 379, 381 (Tex. 1994) (citing United States v. Nobles, 422 U.S. 225, 236 (1975)). In Curry, the Texas Supreme Court held that a request for a district attorney's "entire file" was "too broad" and, citing National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458, 460 (Tex. 1993), held that "the decision as to what to include in [the file] necessarily reveals the attorney's thought processes concerning the prosecution or defense of the case." 873 S.W.2d at 380.(2) Accordingly, if a requestor asks for the district attorney's work file regarding particular litigation, we believe that such a request may be denied in its entirety based on the court's holding in Curry. Id.; see also Open Records Decision No. 647 at 5 (1996).

In this instance, you assert that the request is essentially asking for the district attorney's entire prosecutorial file concerning the individual named in the request, and therefore, the request may be denied in its entirety. Because the pending request encompasses the district attorney's entire litigation file, we conclude that the submitted documents may be withheld pursuant to section 552.111 of the Government Code as attorney work product.(3)

Finally, we address the requestor's argument that, regardless of the applicability of the claimed exceptions, as the authorized representative of the individual specified in the request, he has a special right of access to the submitted information under section 552.023 of the Government Code. Section 552.023 provides, in pertinent part:

(a) A person or a person's authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interests.

(b) A governmental body may not deny access to information to the person, or the person's representative, to whom the information relates on the grounds that the information is considered confidential by privacy principles under this chapter but may assert as grounds for denial of access other provisions of this chapter or other law that are not intended to protect the person's privacy interests.

Gov't Code 552.023 (Emphasis added.). In this instance, the district attorney asserts, and we agree, that the submitted information is excepted from disclosure under section 552.111. Section 552.111 is an exception to public disclosure designed to protect a governmental body's interest, not an individual's privacy interest. See Open Records Decision No. 470 at 2 (1987). Accordingly, we find that the requestor does not have a "special right of access" to the submitted information based on section 552.023, and the information may be withheld.(4)

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,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/ljp

Ref: ID# 135627

Encl. Submitted documents

cc: Mr. Bill Conroy
Journalist
San Antonio Business Journal
9127 Alpine Trail
San Antonio, Texas 78250
(w/o enclosures)


 

Footnotes

1. We presume that to the extent that the district attorney maintains responsive documents that are independent of the case file, those documents have been released to the requestor. See Gov't Code 552.301,.302.

2. We note, however, that the court in National Union also concluded that a specific document is not automatically considered to be privileged simply because it is part of an attorney's file. 863 S.W.2d 458, 461 (Tex. 1993). The court held that an opposing party may request specific documents or categories of documents that are relevant to the case without implicating the attorney work product privilege. Id.; Open Records Decision No. 647 at 5 (1996).

3. We note that the applicability of work product privilege does not depend the outcome of the underlying litigation.

4. You may choose, however, to release all or part of the information that is not otherwise confidential by law. Gov't Code 552.007.
 

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