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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 19, 2002

Mr. Brad Norton
Assistant City Attorney
City of Austin - Law Department
P.O. Box 1088
Austin, Texas 78767-8845

OR2002-7292

Dear Mr. Norton:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173964.

The Austin Police Department (the "department") received a request for a copy of a particular incident report. You state that you have released some information concerning this incident and claim that the remaining 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. We have also considered comments received from the requestor. See Gov't Code 552.304 (providing for submission of public comments).

Initially, we note that the attorney for the victim asserts that the requested information has previously been provided to the attorneys for the criminal defendant in this case. The department makes no representation as to whether or not this information has been previously released. Whether this information has previously been voluntarily released is a fact question that cannot be addressed in the ruling process. See Attorney General Opinion JC-0534 at 1 (2002) (this office does not make factual determinations in opinion process). Accordingly, if in fact the requested information has been voluntarily released to a third party, it may not be withheld on the basis of section 552.108. See Gov't Code 552.007 (if governmental body voluntarily releases information to member of public, such information may not later be withheld unless confidential under law). However, we will address your argument under 552.108 in case this information was not voluntarily disclosed. See Open Records Decision Nos. 579 at 9 (1990) (exchanging information among litigants in informal discovery is not voluntary release of information for purposes of statutory predecessor to Public Information Act), 454 at 2 (1986) (where governmental body disclosed information because it reasonably concluded it had constitutional obligation to do so, it could still invoke law enforcement exception); see also Brady v. Maryland, 373 U.S. 83 (1963) (prosecution is required to provide defense with all potentially exculpatory evidence).

Section 552.108(a) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime." Generally, a governmental body claiming section 552.108 must reasonably explain, if the information does not supply the explanation on its face, how and why the release of the requested information would interfere with law enforcement. See Gov't Code 552.108(a)(1), (b)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).
You state that the information at issue relates to a pending investigation and assert that its release would interfere with the detection, investigation, or prosecution of crime. Based on your representations, we conclude that you have demonstrated the applicability of section 552.108 to the submitted information. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.-Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases).

However, section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle. See also Open Records Decision No. 127 at 3-4 (1976) (discussing holding of Houston Chronicle). Front page offense report information includes the identity and description of the complainant. ORD 127 at 4. However, information tending to identify a sexual assault victim is normally private information that must be withheld in order to protect the victim's common law privacy interest. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976); Open Records Decision Nos. 393 (1983), 339 (1982). In this instance, the requestor identifies herself as the agent of the victim's attorney who is requesting this information on the victim's behalf. As the representative of the victim, the requestor has a special right of access to information that would otherwise be excepted from disclosure in order to protect the common law privacy of this individual. See Gov't Code 552.023(b) (governmental body may not deny access to person to whom information relates or person's agent on grounds that information is considered confidential under privacy principles). Thus, all front page information must be released to the requestor.

In summary, if the requested information has previously been voluntarily released, it may not be withheld on the basis of section 552.108 and must be released to this requestor in its entirety. If, however, the information was not voluntarily disclosed, it may be withheld under section 552.108 with the exception of basic information.

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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

Denis C. McElroy
Assistant Attorney General
Open Records Division
DCM/lmt
Ref: ID# 173964
Enc. Submitted documents

c: Ms. Pamela Lee Hurn
Whitehurst, Harkness, Ozmun & Brees
P.O. Box 1802
Austin, Texas 78767
(w/o enclosures)


 

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