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September 20, 2000

Ms. Jeanine A. Cadena
Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P.
1717 Main Street
3000 Bank One Center
Dallas, Texas 75201-4335

OR2000-3643

Dear Ms. Cadena:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 139234.

The Town of Flower Mound (the "town"), which you represent, received a request for a copy of a notarized affidavit "charging that an eight (8) year old black lab mix named 'Lucky' is dangerous." You claim that the requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.108(a) of the Government Code excepts from required public disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . ." In this instance, you have not adequately demonstrated to this office that the animal control department is a "law enforcement agency" for purposes of section 552.108. See Attorney General Opinion MW-575 (1982) (regulatory agency not "law enforcement agency," even though it is charged with duty of enforcing its own statute); Open Records Decision No. 199 (1978). Nor have you demonstrated that a law enforcement agency or prosecutor maintains an interest in withholding the information at issue from the public at the present time. See, e.g., Open Records Decision No. 586 (1991). We conclude, therefore, that you have not met your burden of demonstrating the applicability of section 552.108 to the information at issue. Consequently, the town may not withhold the submitted information under section 552.108 of the Government Code.

The town wishes to withhold the identity of the complainant under section 552.101 in conjunction with the informer's privilege. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); Open Records Decision Nos. 582 (1990), 515 (1988). Section 552.101 excepts information that is considered to be confidential by law, either constitutional, statutory, or by judicial decision. The informer's privilege is well established under Texas case law and therefore, is encompassed by section 552.101. See Aguilar v. State, 444 S.W.2d 935 (Tex. Crim. App. 1969). The informer's privilege protects the identities of individuals who report violations of statutes to police, other law enforcement agencies, and certain administrative officials. See Open Records Decision No. 279 (1981). It also protects from disclosure the identities of persons who report activities over which a governmental body has criminal or quasi-criminal law-enforcement authority. See Open Records Decision Nos. 515 at 3 (1988), 208 at 1-2 (1978). In order for information to come under the protection of the informer's privilege, it must relate to a violation of a criminal or civil statute. See Open Records Decision Nos. 515 (1998), 391 (1983). The privilege excepts an informer's statement only to the extent necessary to protect the informer's identity. See Open Records Decision No. 549 at 5 (1990). Once the identity of the informer is known to the subject of the communication, the exception in no longer applicable. See Open Records Decision No. 202 (1978).

You explain that the identity of the complainant should be withheld because "citizens who report violations of laws should not be subjected to adverse action at the hands of the violator, which could possible be the result in a situation such as this." However, in this instance, the requestor knows the identity of the informer. As note above, once the identity of the informer is know to the subject of the communication, the exception is no longer applicable. See Open Records Decision No. 202 (1978) Consequently, the town may not withhold the complainant's identity under section 552.101 and the informer's privilege.

In summary, the town must release the requested information to the requestor.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/pr

Ref: ID# 139234

Encl. Submitted documents

cc: Mr. Jim Emerich
2604 Surrey Wood Road
Flower Mound, Texas 75028
(w/o enclosures)


 

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