Open Records Decision No. 252
September 16, 1980

	Re:  Whether a closed investigation file in a murder case is available to the 
general public.

Honorable Raymond Frank
Travis County Sheriff
Courthouse
Austin, Texas

Dear Sheriff Frank:

	You have asked us to decide whether material in three investigatory files must be 
made available to the general public.  The first case concerns a corpse found decapitated 
and otherwise mutilated; the second concerns a young woman found dead in a car; and 
the third involves the deaths of two young men by gunshot wounds.  Suicide figured in 
each case, either as an explanation of the victim's death or as a circumstance in the 
sequence of events investigated.  No arrests or prosecutions have occurred, and there are 
none anticipated at present.

	Having reached a resolution in each case, your office determined that the files 
should be administratively “closed.”  Subsequently, you received requests from different 
parties for access to the material in these files.  You contend that most of the material in 
two of the files and some in the third is excepted from disclosure by section 3(a)(8) of 
the Open Records Act, which authorizes law enforcement agencies to withhold:

	(8)	records . . . that deal with the detection and investigation of 
crime and the internal records and notations of such law 
enforcement agencies which are maintained for internal use in 
matters relating to law enforcement.

V.T.C.S. art. 6252-17a, §3(a)(8).

	Upon receipt of your request for an opinion, this office, by letter, invited you to 
explain:

	Whether the informer's privilege or the law enforcement 
agency's ability to obtain information would be compromised if this 
information were released (and) whether the safety of any witnesses 
might be endangered if portions of this information were released.

We asked for references to specific portions of documents that might raise these or any 
other issues.  You responded that much of the material should be exempted from 
disclosure as “work product” or as statements of witnesses and informants, the disclosure 
of which would hamper efforts in the area of law enforcement.

	Open Records Decision No. 216 (1978) considered the application of section 
3(a)(8) to investigative files that are no longer active.  There, this office, citing Ex parte 
Pruitt, 551 S.W. 2d 706 (Tex. 1977), observed that although “strong considerations exist 
for allowing access to investigatory materials, the better policy reason is to deny access 
to the materials if it will unduly interfere with law enforcement and crime prevention.”  
The following were identified as legitimate, but not exclusive, reasons for withholding 
information under section 3(a)(8):  (1) avoiding interference with the state's prosecution 
of a potential or pending criminal case: (2) preventing excess publicity which might 
deprive a defendant of a fair trial; (3) avoiding disclosure of the identity of informants; 
(4) preventing possible intimidation or harrassment of witnesses; and (5) avoiding the 
unwarranted invasion of personal privacy.  See Houston Chronicle Publishing Co. v. City 
of Houston, 531 S.W. 2d 177 (Tex. Civ. App. - Houston [14th Dist.] 1975), writ ref'd 
n.r.e., 536 S.W. 2d 559 (Tex. 1976).  Whether these interests exist in an inactive 
investigatory file must be determined on a case by case basis.  Open Records Decision 
No. 216 (1978).

	While noting that the purpose of the section 3(a)(8) exception is to protect “valid 
interests such as maintaining as confidential the investigative techniques and procedures 
used in law enforcement and insuring the privacy and safety of witnesses willing to 
cooperate with law enforcement officers,” which interests exist “even though there is no 
prosecution in a particular case,” Open Records Decision No. 216 also emphasized that 
“the [a]ct clearly places the burden on the governmental agency to establish how and 
why a particular exception applies to requested information.”  See also Attorney General 
Opinion H-436 (1974); Open Records Decision Nos. 150 (1977); 127 (1976); 124 
(1976); 91 (1975).  As Open Records Decision No. 150 (1977) observed, “A general 
claim that an exception applies to an entire file or report, when the exception clearly is 
not applicable to all of the information in the file or report, simply does not comport with 
the procedural requirements of the [a]ct.”  See also Open Records Decision No. 91 
(1975).  The question before us, therefore, is whether your office has adequately 
demonstrated that the section 3(a)(8) exception should apply to information in these three 
files.

	We first consider the file involving the two gunshot victims.  You were asked to 
produce the written file, photographs and physical evidence pertaining to it, and “rules of 
procedure . . . forms . . . and instructions as to the scope and contents of all training and 
instruction [manuals] and memoranda relating to the procedure for investigating 
incidents of this type.”  Except for the photographs, the physical evidence, investigative 
procedures and certain excerpts from the file regarding unrelated offenses, investigative 
techniques and criminal histories of persons, you have indicated no concern that 
disclosure of this file will interfere with law enforcement and crime prevention.  It is 
within your discretion to make such determinations so long as that discretion is not 
abused.  See Open Records Decision Nos. 216 (1978); 177 (1977).  Accordingly, that 
part of the written file should be made public.

	With respect to the photographs, physical evidence, procedures and excerpts that 
you desire to withhold, however, you have expressed the opinion that inspection thereof 
would unduly interfere with law enforcement and crime prevention.  An agency is in the 
best position to know whether the disclosure of information pertaining to the detection 
and investigation of crime would hamper its efforts in the area of law enforcement.  
However, as we have indicated, the Open Records Act requires that the agency establish 
how and why a particular exception applies to requested information.  Open Records 
Decision No. 216 (1978).  In our opinion, you have failed adequately to establish how 
and why the section 3(a)(8) exception should apply so as to justify nondisclosure of 
information relating to investigative procedures and techniques.  You have not indicated 
why the investigative procedures and techniques are any different from those that are 
commonly known, and we are therefore unable to determine how disclosure of this 
information or the physical evidence would hamper the investigation and prevention of 
crime in the context of this or any other case, especially after release of the balance of the 
file.  Accordingly, we conclude that the requested information should be released.

	The next file to be considered concerns a woman whose body was found under 
circumstances that could conceivably suggest homicide.  It contains reports detailing the 
offense, the law enforcement steps taken, evidence gathered, witnesses questioned, 
investigative techniques employed and information collected about suspects, witnesses, 
the victim, and about their families and acquaintances.  The file was closed after the 
death was officially ruled a suicide.

	The same duty to justify withholding information under section 3(a)(8) exists 
here.  An agency must indicate how and why disclosure of specific material would 
unduly hamper law enforcement.  Because you have neither identified specific material 
to be withheld nor shown how and why the release of that material might adversely affect 
your efforts at law enforcement, we conclude that material pertaining to the procedures 
and investigative techniques employed in this case must be released.

	In addition to concerns about investigative techniques and procedures and 
physical evidence, however, you have voiced particular concern that the identities of 
informants and witnesses, or information that might lead to them, not be disclosed.  
While you do not believe that any informants or witnesses are necessarily in danger, you 
assert that these individuals come forward with the expectation of confidentiality and that 
unless such confidentiality can be maintained by law enforcement agencies until the time 
of trial, voluntary citizen cooperation with law enforcement officers will be adversely 
affected.

	In Open Records Decision No. 156 (1977), this office discussed section 3(a)(1), 
of the Open Records Act which exempts from disclosure “information deemed 
confidential by law, either Constitutional, statutory or by judicial decision,” including the 
informer's privilege.  The informer's privilege, as we observed, is:

	in reality the Government's privilege to withhold from 
disclosure the identity of persons who furnish information of 
violatons of law to officers charged with enforcement of that law. . . 
. The privilege recognizes the obligation of citizens to communicate 
their knowledge of the commission of crimes to law enforcement 
officials and, by preserving their anonymity, encourages them to 
perform that obligation.  (Quoting Roviario v. United States, 353 
U.S. 53, 59 (1957), Emphasis added).

This privilege, which has long been recognized by Texas courts, see e.g., Aguilar v. 
State, 444 S.W. 2d 935 (Tex. Crim. App. 1969), normally applies only to the identity of 
an informant and not to the content of his communications.  However, the content itself 
is protected when its disclosure would tend to identify the informant.  See Open Records 
Decision No. 216 (1978).  In our opinion, this privilege affords a sufficient basis for you 
to withhold the names and statements of informants.

	You also seek to withhold the names and statements of witnesses in these cases.  
Two reasons for withholding names and statements of witnesses under section 3(a)(8) are 
that disclosure might either subject the witnesses to intimidation or harrassment or harm 
the prospects of future cooperation between witnesses and law enforcement authorities.  
Other reasons may also exist.  See Open Records Decision Nos. 216 (1978); 127 (1976).

	Open Records Decision No. 127 discussed the legitimate section 3(a)(8) interest 
in “insuring the privacy and safety of witnesses willing to cooperate with law 
enforcement officers” and noted that this interest exists “even though there is no 
prosecution in a particular case.”  Open Records Decision No. 216 recognized the valid 
interest in protecting witnesses from intimidation and harrassment.  There, this office 
noted that nothing in the fire reports involved therein suggested that the witnesses had 
been assured of confidentiality or that “disclosure of the identity of the persons 
interviewed would subject them to intimidation or harrassment by any person.”  A 
legitimate inference is that a different set of facts might well have compelled the 
conclusion that the requested information should be withheld.  The decision also 
emphasized that:

. . . a promise of confidentiality made by a law enforcement officer 
in the course of an investigation into possible criminal conduct is an 
important factor in determining whether the section 3(a)(8) 
exception continues to apply to the information so obtained.  
(Emphasis added).

	We think Open Records Decision No. 216 clearly indicates that the names and 
statements of witnesses may be withheld, in an appropriate case, even though an express 
promise of confidentiality has not been given.  Where it is apparent from an examination 
of the facts of the particular case that disclosure might either subject the witnesses to 
possible intimidation or harrassment or harm the prospects of future cooperation between 
witnesses and law enforcement officers, the names and statements of witnesses may be 
withheld.  Applying these considerations to this case, we conclude that the names and 
statements of the witnesses should be released, since the witnesses were not given 
assurances of confidentiality and it does not appear that disclosure might subject them to 
intimidation or harrassment or reduce the chances of future cooperation between 
witnesses and law enforcement authorities.

	The last file to be considered concerns the decapitated corpse.  The same 
considerations applicable to the other files are applicable to this one; accordingly, 
information pertaining to law enforcement procedures and investigative techniques must 
be disclosed.  Information that would reveal the prior criminal histories of various 
persons, including the decedent, may be withheld.  See Open Records Decision No. 216 
(1978).  However, unlike the previous case, we think the names and statements of 
witnesses in this case may be withheld.  Given the drug-related aspects of this case, it is 
apparent that disclosure of the names and statements of the witnesses might subject them 
to harrassment or intimidation.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Jon Bible
Jerry Carruth
Rick Gilpin