Open Records Decision No. 340
December 31, 1982

	Re:  Whether law enforcement records relating to death are available to the public 
under the Open Records Act

Mr. James T. Russell
Administrative Assistant
District Attorney's Office
Bell and Lampasas Counties
P. O. Box 540
Belton, Texas  76513

Dear Mr. Russell:

	You have asked us to decide whether an investigatory file must be made available 
for public inspection pursuant to the Open Records Act, article 6252-17a, V.T.C.S.  You 
claim that the information requested is excepted from public disclosure under article 
6252-17a, sections 3(a)(1), (3), (8), and (17).

	The file contains information relating to a June 7, 1981 incident during which a 
police officer fatally shot a suspect.  In accordance with standard procedure, there was an 
internal investigation and police records were transferred to your office for presentation 
to a grand jury.  The matter was presented to the Bell County Grand Jury, but no 
indictment was returned.  In October of 1981, your office supplied a copy of the file, 
pursuant to a subpoena to produce records, to the federal grand jury for the Western 
District of Texas.  That investigation is still pending in the Civil Rights Division of the 
Department of Justice.

	You state that within thirty days of the incident the suspect's widow filed a claim 
for damages against the city, a prerequisite to filing suit against the city.  Subsequently, 
the widow's attorney has requested the following from your office:

1.	the offense report relating to the incident;

2.	the names and addresses of witnesses;

3.	the statements of witnesses; and

4.	reports prepared as the result of an investigation.

The city attorney states that he has also received a request for disclosure from the 
widow's attorney and has determined that, in view of the potential litigation, the 
information should be withheld.

	It is our opinion that section 3(a)(8) of the Open Records Act excepts the 
requested material from public disclosure.  That section is applicable to:

records of law enforcement agencies 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.

	Police investigations into incidents of death by other than natural causes are 
rarely closed completely.  Open Records Decision No. 127 (1976).  Although the Bell 
County Grand Jury and the District Attorney have discontinued their investigation, the 
ongoing federal investigation keeps alive the possibility of criminal charges.  In the case 
Houston Chronicle Publishing Company 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), the 
court stated that information such as the witnesses names and statements requested here 
should be excepted from public disclosure because:

To open such material . . .  in all cases might endanger the position 
of the State in criminal prosecutions by the use of such materials to 
the disadvantage of the prosecution.

Houston Chronicle at 187.

	The facts in this case are distinguishable from the facts in Open Records Decision 
No. 252 (1980).  In the three requests consolidated in that decision, there was no 
continuing investigation into the deaths of the victims.  The sheriff's office had 
determined that the files should be administratively closed.  In the case presently before 
us, however, there is a possibility of criminal charges since the federal investigation is 
still pending.  We need not reach your claims based on 3(a)(1), 3(a)(3), or 3(a)(17).

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 Patricia Hinojosa
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Patricia Hinojosa
Jim Moellinger