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October 11, 2000

Mr. Leonard W. Peck, Jr.
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342

OR2000-3921

Dear Mr. Peck:

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# 140582.

The Texas Department of Criminal Justice (the "department") received a request for the "1-B shift rosters" for the department's Garza West Transfer Facility for the period from June 1 through August 11, 2000.(1) You have submitted for our review the information that is responsive to the request. You assert that this information is excepted from public disclosure under sections 552.108 and 552.117 of the Government Code. We have considered the exceptions you assert and we have reviewed the submitted information.

You specifically argue that the requested information is excepted from public disclosure under section 552.108(b)(1) of the Government Code. In pertinent part, this provision states that "[a]n internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution" is excepted from required public disclosure if "release of the internal record or notation would interfere with law enforcement or prosecution." Gov't Code 552.108(b)(1). This office has determined that the department is a law enforcement agency for purposes of section 552.108. Open Records Decision No. 413 at 1 (1984). Interpreting the statutory predecessor to section 552.108, the Texas Supreme Court has held that the provision applies to information held by a law enforcement agency if its release "will unduly interfere with law enforcement and crime prevention." Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977) (emphasis added); see also Open Records Decision No. 531 at 2 (1989). When section 552.108(b) is claimed, the agency claiming it must reasonably explain, if the information does not supply the explanation on its face, how releasing the information would interfere with law enforcement. Open Records Decision No. 434 at 3 (1986). Whether disclosure of particular records will interfere with crime prevention must be decided on a case-by-case basis. Attorney General Opinion MW-381 (1981).

You explain that a "shift roster identifies every post that is to be occupied on a particular shift and who was assigned to what post on a specific shift on a specific day" and that the shift roster "may also contain comments on specific security issues about which staff were given notice or gave special attention." In support of the applicability of section 552.108(b)(1), you argue that the release of the information "could compromise the safety of a prison," in that:

The identification of which posts are occupied and which are not would identify exploitable or expandable holes in prison security. Knowing where people are not active could tell someone where to go to break into or out of a prison or to work mischief within a prison. . . . Similarly, knowing who was occupying a particular post regularly would tell someone who wished to get around that post who to locate and who to threaten with harm. It might be hard to find and intimidate everyone on a shift, but manageable if only a few need to be intimidated. Information on issue of interest to management might identify exploitable opportunities or areas to avoid.

Having reviewed your arguments and the submitted information, we agree that the release of the information would interfere with law enforcement or crime prevention. Accordingly, you may withhold from disclosure the submitted information under section 552.108(b)(1). Because section 552.108 is dispositive of the information at issue, we do not address your additional claimed exception under section 552.117.

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,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/pr

Ref: ID#140582

Encl. Submitted documents

cc: Ms. Mary Jones, CO IV
P o Box 1893
Beeville, Texas 78104
(w/o enclosures)


 

Footnotes

1. You explain that the requestor is an employee of the department's Garza West Transfer Facility. However, we rely on your representation that the requestor seeks the information in her capacity as a member of the general public. See, e.g. Open Records Decision Nos. 468 at 3 (1987) (employee whose job requires or permits certain access to records has not been granted access as a member of the public and granting access does not constitute a disclosure to the public under the Act).
 

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