|Office of the Attorney General - State of Texas
December 27, 2000
Ms. Mary E. Reveles
Dear Ms. Reveles:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 142709.
The Fort Bend County Sheriff's Department (the "department") received the following request:
1. Copies of all information, documents and files including, but not limited to, memos, faxes, letters, tape recordings, video recordings, and reports relating in any way to any and all investigations conducted by the [department] of me, Gary W. Gates, Jr., from January 1, 2000 to the date of this letter.
2. All documents, including, but not limited to all letters and memos from the Fort Bend County District Attorney's Office to the [department] regarding or relating in any way to any investigation of me, Gary W. Gates, Jr., from January 1, 2000 to the date of this letter.
3. All rejection letters sent, at any time during this year, from the Fort Bend County District Attorney's Office to the [department] advising that the District Attorney has rejected pursuing any criminal charges against me, Gary W. Gates, Jr.
You claim that the information requested in item three is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information.
First, you state that the information requested in item 1 involves reports, records, and working papers used or developed in an investigation of alleged child abuse under Chapter 261 of the Family Code that we previously determined must be withheld under section 261.201 of the Family Code. See Open Records Letter No. 2000-3784. Because we have previously determined that the requested information in item one must be withheld, you may rely on Open Records Letter No. 2000-3784 to continue to withhold that information. See Gov't Code § 552.301(a) (providing that governmental body must ask for a decision if there has not been a previous determination about whether the information falls within an exception to disclosure).
You also state that the department has no information responsive to item 2. The Public Information Act (the "Act") only applies to information in existence at the time of the request. See Gov't Code §§ 552.002, .021, .227, .351. The Act does not require a governmental body to prepare new information in response to open records requests. Open Records Decisions Nos. 452 (1986), 342 (1982). Furthermore, the Act does not ordinarily require a governmental body to obtain new information to comply with a request. Open Records Decision No. 561 (1990). However, a governmental body must make a good faith effort to relate a request for information to information which it holds. Id. Thus, you need not comply with this aspect of the request if the information does not exist.
You assert that information responsive to item 3 is excepted under section 552.108(b)(3). Section 552.108(b)(3) provides the following:
(b) An 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 the requirements of section 552.021 if:
. . .
(3) the internal record or notation:
(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 state that the submitted information reflects the work product of the prosecuting attorney. Based on your representation and our review of the information, we agree that the information responsive to item 3 may be withheld under section 552.108(b)(3) of the Government Code.
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 Hadassah Schloss at 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.
Ref: ID# 142709
Encl: Submitted documents
cc: Mr. Gary W. Gates, Jr.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US