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June 1, 2000

Mr. Leonard W. Peck, Jr.
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342

OR2000-2139

Dear Mr. Peck:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 136461.

The Texas Department of Criminal Justice (the "department") received a request for records relating to a particular incident involving the use of force. You understand the requestor to be seeking access to statements given by himself and other correctional officers. You have submitted the responsive information for our review. You advise us that the department will provide the requestor with his own statements. You claim that the other responsive information is excepted from disclosure under sections 552.107 and 552.131 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted.

Section 552.131 of the Government Code relates to inmates of the department. Section 552.131 provides in relevant part:

(a) Except as provided by Subsection (b) or by Section 552.029 [of the Government Code], information obtained or maintained by the Texas Department of Criminal Justice is excepted from [required public disclosure] if it is information about an inmate who is confined in a facility operated by or under a contract with the department.

Gov't Code 552.131(a). Section 552.029 of the Government Code provides in relevant part:

Notwithstanding . . . Section 552.131, the following information about an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice is subject to required disclosure[:]

. . .

(8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate.

Gov't Code 552.029(8). Thus, section 552.131 is explicitly made subject to section 552.029. Pursuant to section 552.029, "basic information" regarding an incident involving the use of force is subject to required disclosure. Gov't Code 552.029(8). In this instance, the requested information relates to an incident involving the use of force. Consequently, basic information about that incident is subject to required disclosure under section 552.029(8). Basic information that is subject to disclosure under section 552.029(8) includes the time and place of the incident, the names of the inmate and of department officials who were directly involved, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding any criminal charges or disciplinary actions that were filed as a result of the incident. The rest of the requested information is excepted from disclosure under section 552.131(a).

You also claim that the information in question is excepted from disclosure under section 552.107 of the Government Code in conjunction with the decision of the court in Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), aff'd in part and rev'd in part, 679 F.2d 1115, amended in part and vacated in part, reh'g denied, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983). Section 552.107(2) provides that information is excepted from required public disclosure if "a court by order has prohibited disclosure of the information." Gov't Code 552.107(2). The Ruiz decision restricted the dissemination of "sensitive information" regarding inmates. The Ruiz final judgment, entered December 11, 1992, gave the Texas Board of Criminal Justice (the "board") authority to define the term "sensitive information." On January 21, 2000, the board met and decided that the term Sensitive Information "shall include all information regarding TDCJ-ID offenders not required to be disclosed pursuant to Section 552.029, Government Code." Thus, the board has determined that information that is within one of the categories delineated in section 552.029 of the Government Code is not sensitive information that may be withheld from disclosure under section 552.107(2) in conjunction with the Ruiz decision. Therefore, basic information about an incident involving the use of force is not excepted from disclosure under section 552.107 of the Government Code and must be released in accordance with section 552.029(8).

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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ljp

Ref: ID# 136461

Encl. Submitted documents

cc: Mr. Donald Jenkins
4800 Meadows
Dallas, Texas 75215
(w/o enclosures)


 

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