Open Records Decision No. 285
November 6, 1981

	Re:  Whether investigative report concerning misconduct in city tax office is 
available under the Open Records Act

Honorable Wade Adkins
El Paso City Attorney
2 Civic Center Plaza
El Paso, Texas  79999

Dear Mr. Adkins:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to the availability of an investigative report concerning misconduct in a city 
tax office.  The report was compiled, at the request of the mayor, by the intelligence 
division of the El Paso Police Department.  It consists of two kinds of documents:  
synopses of interviews with witnesses, and a report summarizing the allegations and the 
investigator's findings and recommendations.

	The investigation in this case was initiated by the mayor and was essentially 
administrative in nature.  Nevertheless, we believe that synopses of witnesses interviews 
are excepted from disclosure by section 3(a)(1) of the act, as “information deemed 
confidential by law,” in this case, the informer's privilege.  Open Records Decision Nos. 
279 (1981); 172 (1977).  The allegations which prompted the investigation alleged 
conduct which might have resulted in criminal prosecution.  Although no criminal 
prosecution has been undertaken, we have previously observed that, unless informants' 
confidentiality is maintained, voluntary citizen cooperation with law enforcement 
investigations might be compromised.  Open Records Decision No. 252 (1980).  
Furthermore, although we do not believe that the investigation in this case should be 
viewed as a police matter, it is well established that the informer's privilege applies to 
“administrative officials having a duty of inspection or law enforcement within their 
particular spheres.”  Open Records Decision No. 279 (1981).  In our opinion, the 
privilege must also be extended in this instance to include the content of the informers' 
statements, since the statements themselves would in many cases tend to reveal the 
identity of these informants.  Roviaro v. United States, 353 U.S. 53, 60 (1957); Open 
Records Decision Nos. 252 (1980); 216 (1978).  We conclude that the synopses of 
interviews with witnesses are excepted from disclosure by section 3(a)(1) of the Open 
Records Act.  In view of this conclusion, we need not consider the applicability of 
section 3(a)(8) of the act.

	As to the actual report, although the allegations and portions of the information 
obtained through investigation appear to be subject to disclosure, the opinions and 
recommendations of the investigator, together with certain information which is 
inextricably intertwined with those opinions and recommendations, are excepted from 
disclosure by section 3(a)(11), as:

inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than one in litigation with 
the agency.

Open Records Decision Nos. 239 (1980); 231 (1979).  We have marked those portions of 
the report which may be so withheld.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gray III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger