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June 14, 2000

Ms. Tenley A. Aldredge
Assistant County Attorney
County of Travis
P.O. Box 1748
Austin, Texas 78767

OR2000-2325

Dear Ms. Aldredge:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 136151.

The Travis County District Attorney (the "district attorney") received a written request for "all files, records and any other documents in the possession of the Travis County District Attorney's Office pertaining to any arrest, investigation, incarceration, and prosecution of David Brian Oestrick." You contend that the requested information, except for public court documents contained therein, is excepted from required public disclosure pursuant to sections 552.101, 552.108, and 552.130 of the Government Code.(1) For purposes of this ruling, this office assumes the district attorney has released the court documents to the requestor in accordance with section 552.022(a)(17) of the Government Code.

Section 552.108(a)(3) of the Government Code provides that information is excepted from public disclosure if it is information that is either (A) prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation or (B) information that reflects the mental impressions or legal reasoning of an attorney representing the state. Section 552.108(a)(3), in essence, protects a prosecutor's "work product."

The work product doctrine is applicable to litigation files in criminal as well as civil litigation. See Curry v. Walker, 873 S.W.2d 379, 381 (Tex. 1994) (citing United States v. Nobles, 422 U.S. 225, 238 (1975)). In Curry, the Texas Supreme Court held that a request for a district attorney's "entire litigation file" was "too broad" and, quoting National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 460 (Tex. 1993, orig. proceeding), 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." Curry, 873 S.W.2d at 380. Because the requestor in this instance seeks all the information in the district attorney's litigations files, we conclude that the district attorney may withhold the requested files in their entirety pursuant to section 552.108(a)(3) of the Government Code as attorney work product.(2)

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,

Julie Reagan Watson
Assistant Attorney General
Open Records Division

JRW/RWP/ljp

Ref: ID# 136151

Encl. Submitted documents

cc: Mr. David Botsford
Sheinfeld, Maley & Kay
301 Congress Avenue, Suite 1400
Austin, Texas 78701
(w/o enclosures)


 

Footnotes

1. Because we resolve your request under section 552.108, we need not address the applicability of the other exceptions you raised.

2. We note, however, that a specifically requested document is not automatically considered to constitute work product simply because it is a part of an attorney's litigation file. Valdez, 863 S.W.2d at 461. Thus, an individual may request specific documents or categories of documents contained in the litigation file without necessarily implicating the work product privilege. The party opposing disclosure in such a case has the burden of explaining the applicability of the privilege. Id.
 

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