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August 2, 2000

Mr. Lupe Lozano
Warden II
Smith Unit
Texas Department of Criminal Justice
P.O. Box 99
Huntsville, Texas 77342-0099

OR2000-2926

Dear Mr. Lozano:

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# 137606.

The Texas Department of Criminal Justice (the "department") received a request for information relating to a particular inmate disciplinary matter, including a tape recording of the disciplinary hearing. You claim that the requested tape recording, which you have submitted for our review, is excepted from disclosure under sections 552.107 and 552.131 of the Government Code.(1) We have considered the exceptions you claim and have reviewed the information you submitted.(2)

Initially, we address your arguments regarding the department's responsibilities to the requestor under section 552.028 of the Government Code. Section 552.028 provides as follows:

(a) A governmental body is not required to accept or comply with a request for information from:

(1) an individual who is imprisoned or confined in a correctional facility; or

(2) an agent of that individual, other than that individual's attorney when the attorney is requesting information that is subject to disclosure under this chapter.

(b) This section does not prohibit a governmental body from disclosing to an individual described by Subsection (a)(1), or that individual's agent, information held by the governmental body pertaining to that individual.

(c) In this section, "correctional facility" has the meaning assigned by Section 1.07(a), Penal Code.

Gov't Code 552.028. This office interprets section 552.028(a)(2) to mean that a request for information under chapter 552 of the Government Code that is made by an attorney for an inmate has the same effect and is entitled to the same treatment as a request made by a member of the general public. Section 552.028(a) otherwise provides that the department need not accept or comply with a request for information made by an inmate or an agent for an inmate. The department acknowledges that the requestor is an attorney. In his letter to Warden Lozano dated May 18, 2000, the requestor states that the law firm with which he is associated has been retained to represent the inmate to whom the information in question here pertains. Therefore, the attorney's request for information must be treated the same as that of any other member of the general public.

Section 552.131 of the Government Code relates to information about inmates of the department.(3) 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). The legislature explicitly made section 552.131 subject to section 552.029. Pursuant to section 552.029, "basic information" regarding an alleged crime involving an inmate is subject to required disclosure. Gov't Code 552.029(8).

In this instance, an inmate was disciplined for his alleged involvement in an incident at the Preston E. Smith Unit on April 25, 2000. The requestor seeks a tape recording of the disciplinary hearing. The requestor already has a copy of the disciplinary report and hearing record, which provides a brief summary of the incident in question. Under the heading "offense description," the disciplinary report and hearing record alleges that the inmate in question was involved in a fight that resulted in personal injury and property damage. Based on those allegations, we believe that basic information about that incident is subject to required disclosure under section 552.029(8). We therefore conclude that any basic information regarding the incident in question that is not contained in the disciplinary report and hearing record is subject to 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 inmates and of department employees who were involved, a brief narrative of the incident, a brief description of any injuries sustained by anyone involved, and information regarding any criminal charges or disciplinary actions that were filed as a result of the incident. Any other responsive information, including the requested tape recording of the disciplinary hearing, is excepted from disclosure under section 552.131(a). As we are able to make a determination under sections 552.029 and 552.131, we need not consider your claim under section 552.107.

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# 137606

Encl. Submitted documents

cc: Mr. John R. Lee
Dunn & Walker
Attorneys at Law
P.O. Box 311
Lubbock, Texas 79408-0311
(w/o enclosures)


 

Footnotes

1. You state that, because a requested response to a related grievance filed by the inmate in question did not exist on the date of the department's receipt of the request for information, the department does not seek a decision regarding that document. We agree that a governmental body's obligation to respond to a request for information under chapter 552 of the Government Code extends only to responsive information that is in existence when the request is received. See Open Records Decision No. 555 at 1 (1990).

2. This letter ruling considers only those exceptions to disclosure that you addressed in your letter dated June 12, 2000. See Gov't Code 552.301(e)(1)(A).

3. As of the date of this letter ruling, four different sections of the Act were denominated as section 552.131. Sections 552.131 and 552.029, relating to inmates of the department, were added to chapter 552 of the Government Code by the Act of May 26, 1999, 76th Leg., R.S., ch.783, 1, 2, 1999 Tex. Gen. Laws 3407-08.
 

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