Cornyn Open Records Letter Ruling June 1, 2000
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John Cornyn
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June 1, 2000

Mr. John Steiner
Division Chief
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546

OR2000-2144

Dear Mr. Steiner:

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# 136947.

The City of Austin (the "city') received a request for copies of audio and videotapes made by city police on March 31, 2000 regarding a named individual. You seek to withhold the requested information under sections 552.103 and 552.108 of the Government Code.

You acknowledge that the city's request for the decision of this office is "a day late." The act imposes a duty on governmental bodies seeking an open records decision pursuant to section 552.301 to submit that request to the attorney general within ten business days after the governmental body's receipt of the request for information. The time limitation found in section 552.301 is an express legislative recognition of the importance of having public information produced in a timely fashion. Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ). When a request for an open records decision is not made within the time period prescribed by section 552.301, the requested information is presumed to be public. See Gov't Code 552.302. This presumption of openness can only be overcome by a compelling demonstration that the information should not be made public. See, e.g., Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Here, you advise that the "real interest is that of the District Attorney," whom you say, "is presenting the information for this case to the Grand Jury." Accordingly, we will consider your arguments for withholding the requested information. See Open Records Decision No. 586 (1991) (when a governmental body fails to timely seek an attorney general decision under the act, the need of another governmental body may provide a compelling reason for withholding the requested information).

Section 552.108(a)(1) excepts from required public disclosure

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if:

(1) release of the information would interfere with the detection, investigation, or prosecution of crime[.]

Again, you advise that the district attorney intends to present the case to which the requested materials relate to the grand jury. You submit a letter from the District Attorney's Office to this effect. You also represent that this case is the subject of a pending criminal investigation. We believe that you have shown that the district attorney's interest in this matter overcomes the presumption of openness arising upon the city's failure to timely seek a decision from this office, and that release of the requested information would interfere with the prosecution of crime. Accordingly, we conclude that you may withhold the requested information under section 552.108(a)(1). In view of this disposition, we need not address your other claimed exception to disclosure.

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

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/WMW/ljp

Ref: ID# 136947

Encl. Submitted audio and videotape

cc: Mr. Joe K. Crews
Ivy, Crews, Elliott, P.C.
8140 North Mopac
Building 2-150
Austin, Texas 78759-8860
(w/o enclosures)


 

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