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August 22, 2000

Mr. Thomas Keever
Assistant District Attorney
County of Denton
P.O. Box 2850
1450 East McKinney, Suite 3100
Denton, Texas 76202

OR2000-3213

Dear Mr. Keever:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code, the Public Information Act (the "Act"). Your request was assigned ID# 138229.

The Criminal District Attorney of Denton County (the "county") received a request for the documents contained in three specified files pertaining to the indictments and conviction of one named individual, and the documents pertaining to the indictments and conviction of another named individual, who was convicted in 1988, and who received a 25-year sentence. You indicate the county is willing to release to the requestor much of the responsive information. You have submitted for our review exhibits marked by you as "C" through "I." You assert that this information is excepted from disclosure under sections 552.101, 552.107, 552.108, and 552.111 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information.

You assert that exhibits "C" and "D" comprise criminal history record information ("CHRI") that is excepted from disclosure by section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Title 28, Part 20 of the Code of Federal Regulations governs the release of CHRI which states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety (the "DPS") maintains, except that the DPS may disseminate such records as provided in chapter 411, subchapter F of the Government Code. See also Gov't Code 411.087 (entities authorized to obtain information from DPS are authorized to obtain similar information from any other criminal justice agency; restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies). Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release the information except to another criminal justice agency for a criminal justice purpose, id. 411.089(b)(1). Other entities specified in Chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release the information except as provided by Chapter 411. See generally id. 411.090-.127. Thus, any CHRI generated by the federal government or another state may not be made available to the requestor except in accordance with federal regulations. See Open Records Decision No. 565 (1990). Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. With the exception of a mug shot contained in exhibit "D" and which the county must release to the requestor,(2) we agree that the documents contained in exhibits "C" and "D" constitute CHRI. The county therefore must not release this information pursuant to section 552.101.

With respect to the remaining five exhibits, among other arguments, you assert section 552.108(a)(3). Section 552.108 of the Government Code provides in pertinent part:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if:

. . .

(3) it is information that:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

(B) reflects the mental impressions or legal reasoning of an attorney representing the state.

You also state that each of the remaining five exhibits consists of "copies of information prepared by the attorney or attorneys representing the state in the course of preparing for criminal litigation and reflecting the mental impressions or legal reasoning of said attorney or attorneys[.]" Based on this representation and our review of the information at issue, we find that the county may withhold the entirety of exhibits "E," "G, " and "H." Exhibit "F," however, contains some documents that, on their face, are not indicated to have been "prepared by an attorney representing the state[.]" The documents at issue also do not, on their face, "reflect the mental impressions or legal reasoning of an attorney representing the state." These documents include, for example, utility records of one of the named individuals, police department radio logs, a police department daily activity sheet, and a composite sketch of a suspect.(3) These documents were evidently obtained by the attorney, but not prepared by the attorney, nor do they reflect the mental impressions or legal reasoning of an attorney. Thus, we do not believe that they are excepted by section 552.108(a)(3).(4) Exhibit F also contains a motion prepared by a defense attorney that is indicated to have been filed with a court. Information that is also contained in a public court record is not excepted from disclosure by section 552.108 or section 552.111. See Gov't Code 552.022(a)(17) ( information that is also contained in a public court record is not excepted from required public disclosure unless it is expressly confidential under other law)(5); see also Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 (Tex. 1992) (documents filed with courts are generally considered public and must be released). The motion contains certain notations apparently made by an attorney for the state, and which the county may redact pursuant to section 552.108(a)(3) prior to releasing the motion to the requestor.(6)

Finally, we note that one of the documents contained in exhibit "F" that is subject to release (a police department daily activity log)(7) contains a Texas vehicle license plate number, which we have marked. Section 552.130 of the Government Code excepts from required public disclosure information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. See Gov't Code 552.130. Pursuant to section 552.130, the county must redact the license plate number we have marked prior to releasing the daily activity log.

In summary, the county must withhold exhibits "C" and "D" pursuant to section 552.101, except the county must release the mug shot contained in exhibit "D." The county may withhold the remaining exhibits pursuant to section 552.108, except for the specific documents we have marked with green or blue flags. Prior to their release, the county may redact any notations from these documents that were made by attorneys for the state or that would reveal the mental impressions or legal reasoning of an attorney for the state, and pursuant to section 552.130 the county must redact from the red-flagged document the information we have marked.

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,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/pr

Ref: ID# 138229

Encl. Submitted documents

cc: Carl Kent Investigations
1630 Cantrell Boulevard
Conroe, Texas 77301
(w/o enclosures)


 

Footnotes

1. All of the information pertains to litigation that has concluded. You assert, in part, that some of the information "is attorney work product excepted from public disclosure under [s]ections 552.107 and 552.111." We note that section 552.111, and not section 552.107, is the appropriate exception under the Act for an assertion of the attorney work product privilege where the litigation for which the material was prepared has concluded. See Open Records Decision No. 647 (1996). Because you make no other arguments or assertions as to the applicability of section 552.107, we have considered your assertion of attorney work product only under section 552.111.

2. The mug shot does not itself constitute CHRI, and it is contained on a separate document that is severable from the CHRI. We believe the mug shot in this instance is subject to release because it is not made confidential by any statute and because the release of the mug shot alone does not implicate the privacy interests of the named individual. See Open Records Decision No. 616 at 2-3 (1993) (distinguishing a mug shot as not protected by privacy interests, in part, because it is not contained in a compilation of the individual's criminal history).

3. We have marked the documents at issue with green flags.

4. Because the documents at issue do not reveal an attorney's mental impressions or legal reasoning, we do not believe they are excepted by the attorney work product privilege aspect of section 552.111. See Open Records Decision No. 647 at 5 (1996). Because you make no other arguments for the withholding of these documents, we find that they are not excepted from disclosure and must be made available to the requestor. However, to the extent these documents contain written notations that may reveal the attorney's thought processes, conclusions, and legal theories, we agree that the county may redact such notations from the documents, pursuant to section 552.108(a)(3).

5. This office has found that the attorney work product privilege, in the context of the Act, does not constitute "other law" that makes information confidential. See Gov't Code 552.022(a); Open Records Decision No. 575 at 2 (1990).

6. We have marked the document with blue flags.

7. We have marked the document with a red flag.
 

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