Open Records Decision No. 371
April 15, 1983

	Re:  Whether report on fire by Arson and Fire Investigation Section of Dallas Fire 
Department is excepted from public disclosure by section 3(a)(8) of the Open Records 
Act

Mr. Edward H. Perry
Assistant City Attorney
Office of the City Attorney
City Hall
Dallas, Texas  75201

Dear Mr. Perry:

	You have asked whether certain materials prepared by the city of Dallas Fire 
Department during the investigation of a fire which occurred at a Dallas Housing 
Authority project are available to the public under the Open Records Act, article 
6252-17a, V.T.C.S.  You contend that section 3(a)(8) of the act excepts these materials 
from required disclosure.  Section 3(a)(8) excepts:

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.

	The Arson and Fire Investigation Section of the Dallas Fire Department maintains 
these investigative materials.  This division of the department is a “law enforcement 
agency” within the meaning of section 3(a)(8).  Open Records Decision No. 127 (1976).

	In Open Records Decision No. 127 (1976), this office dealt with the question of 
whether the city of Dallas had to release certain investigative records concerning a 
specific fire.  This decision concluded that Houston Chronicle Publishing Corp. 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), required the release of the following 
information:

time of the occurrence, the fire department's response, the location 
of the fire, how and by whom it was reported, a description of the 
building, estimates of the value of the building and its contents, 
whether and to what amount the property is insured by whom, and a 
description of any injuries or deaths that occurred with the name and 
age of the victim, nature of injury, conveyance and hospital, and 
date and time of death, as applicable [and] a detailed description of 
the cause and origin of the fire.

On the other hand, the decision concluded that the following information could be 
withheld under section 3(a)(8):

the investigator's opinion and conclusions concerning the names of 
suspects, the possible motive for an incendiary fire, evidence found, 
names of witnesses and summaries of their statements, and 
information concerning the description, background, and possible 
location of any suspect.

	In Open Records Decision No. 134 (1976), this office held that the state fire 
marshall had to release the following information in an investigative report concerning a 
specific fire:

the name of the investigator(s), the name of the person requesting 
the investigation, the date of such request, the probable cause of the 
fire, the owner, occupant, location of the loss or incident, date and 
time of incident, weather conditions, structural information, name 
and address of insuring company, amount of insurance involved, 
name of agent, adjuster, extent of damage, whether there were any 
fatalities or injuries involved, whether legal action was taken, and 
the status of the case [and] the dates of the investigation, the 
construction and condition of the property damaged.

	The decision concluded that the following information could be withheld
 under section 3(a)(8):

those portions of the report calling for the investigator's opinion and 
conclusions concerning probable motive for the fire, the names of 
possible suspects, the names of witnesses, the previous fire loss 
recorded of the parties, and notes as to laboratory tests.

	In 1977, the Texas Supreme Court decided Ex parte Pruitt, 551 S.W.2d 706 (Tex. 
1977).  One of the issues in that case was whether, pursuant to a subpoena, the fire 
marshall of Harris County had to produce records of his investigation of a fire.  He 
willingly produced certain basic factual information, such as the location and description 
of the house, the cause and location of the fire, etc., but sought to withhold the remainder 
of his records on the ground that the disclosure of them would interfere with an active 
arson investigation.  The court held that under section 3(a)(8) and article 1606c, 
V.T.C.S., basic factual information pertaining to a fire must be produced, but 
information in an active arson file such as the names and statements of witnesses, the 
“opinions and conclusions of the fire marshal's investigators regarding witnesses, 
suspects, statements made by persons questioned, and the investigators' opinion as to the 
motive for an intentionally set fire,” and tests performed by investigators to determine 
how the fire was started, the materials used in starting it, and who started it, should 
remain undisclosed.  551 S.W.2d at 709.  The court concluded that “the better policy 
reason is to deny access to . . . materials if it will unduly interfere with law enforcement 
and crime prevention.”  551 S.W.2d at 710.

	In this instance, you have submitted exhibits labelled “A” through “J.”  You have 
advised us that you are willing to release exhibits “A,” “B,” “C,” and the first two pages 
of exhibit “D.”  You seek to withhold the rest of these materials, essentially because “the 
investigation into the fire in question is still pending.”

	We first consider the casualty reports, which constitute the remainder of exhibit 
“D.”  Certain information concerning two of the five people who died in this fire, which 
is reflected in these reports, i.e., their names and ages, gender, ethnicity, and the fact that 
each died of smoke inhalation, is also contained in exhibit “C,” which, as we have noted, 
you are willing to release.  The fact that this information is in a document which you are 
willing to release precludes you from claiming that it may be withheld when contained in 
a document which you are not willing to release.  As to the remainder of the casualty 
reports concerning these two decedents, we find nothing therein that is not public 
information under Open Records Decision Nos. 127 and 134 (1976).  In our opinion, the 
release of the information in these reports would not “unduly interfere with law 
enforcement and crime prevention.”  Ex parte Pruitt, supra, at 710.

	Another casualty report in exhibit “D” concerns a decedent who is not mentioned 
in exhibit “C.”  In our opinion, however, the information contained in this report is no 
different from the information contained in the other casualty reports.  It too must be 
made available to the public.

	Exhibit “E” describes the clothing worn by four of the decedents and the amount 
of carbon monoxide in their bloodstreams.  You contend that the notations concerning 
smoke inhalation may be withheld under section 3(a)(8).  We believe the information on 
the amount of carbon monoxide in the decedents' blood is comparable to the blood and 
other lab reports held to be unavailable to the public in Open Records Decision Nos. 127 
and 134 (1976).  This information is, therefore, protected by section 3(a)(8).

	Exhibit “F” consists of forensic reports concerning the five decedents.  Most of 
the information contained therein is also contained in the aforementioned exhibit “C,” 
and, in our opinion, that which is not is available to the public under Ex parte Pruitt, 
supra, and Open Records Decision Nos. 127 and 134 (1976).

	Exhibit “G” is a memorandum from the captain in charge of this fire investigation 
to the chief of the fire department.  With the exception of the second sentence in the third 
paragraph, the information contained in this memorandum is precisely the kind of basic 
factual information pertaining to a fire which was held to be available to the public in the 
aforementioned decisions of the Texas Supreme Court and this office.  Because the 
second sentence of the third paragraph identifies a witness and contains his statement, it 
may be withheld.  Likewise, Exhibit “H,” which is the statement of a witness, may be 
withheld.

	Exhibit “I” is a diagram of the house which burned.  We conclude that this 
diagram constitutes the kind of investigative material which may be withheld under 
section 3(a)(8) as construed in the foregoing decisions.

	Exhibit “J” is a narrative report by a member of the fire department concerning 
rescue efforts made at the scene of the fire.  It is entirely factual and you have made no 
showing that its release would unduly interfere with law enforcement.  See Open Records 
Decision Nos. 354 (1982); 287 (1981).

	To summarize:  You do not seek to withhold Exhibits “A,” “B,” “C,” and the first 
two pages of “D.”  We conclude that the remainder of Exhibit “D,” Exhibit “F,” and 
Exhibit “J” may not be withheld under section 3(a)(8).  Exhibits “E,” “H,” “I,” and part 
of “G” may be withheld under section 3(a)(8).

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

Approved:
Opinion Committee

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Nancy Sutton