Open Records Decision No. 377
May 5, 1983

	Re:  Whether affidavits alleging criminal conduct by city employee are open to 
the public under the Open Records Act

Mr. Lee Clark
Assistant City Attorney
City Hall
Pasadena, Texas  77501

Dear Mr. Clark:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether affidavits alleging criminal conduct by a city employee are 
subject to disclosure to that employee.  You assert that the affidavits are excepted from 
disclosure under sections 3(a)(1), 3(a)(3), and 3(a)(8) of the act.  These sections except 
from disclosure, respectively, information deemed confidential by law; information 
relating to litigation; and records relating to law enforcement agencies.  We conclude that 
the requested information is excepted from disclosure under section 3(a)(1), specifically 
the “informer's privilege.”

	We first note that this requestor does not, because he is a city employee, enjoy 
any “special right of access” to the requested information.  If the information is within 
one of the foregoing sections it may be withheld from him as well as from others.  See, 
e.g., Open Records Decision No. 288 (1981).

	This office has repeatedly held that the content of an informer's communication is 
privileged in instances where its disclosure would tend to reveal the informant's identity.  
Open Records Decision Nos. 320 (1982); 285 (1981); 252 (1980); 172 (1977).  When the 
conduct alleged in the communication is criminal, the informer's privilege may be 
invoked by the custodian of the records.  Open Records Decision No. 279 (1981) 
(informer's privilege applies to the identity of a person who reports a zoning violation, a 
class C misdemeanor).  The informer's privilege is intended to encourage persons to 
report possible misconduct without their identities being disclosed.  Open Records 
Decision Nos. 230 (1979); 183 (1978); 172 (1977).  See also Attorney General Opinion 
MW-575 (1982).  Its purpose in protecting an informant's anonymity is to protect him 
from the fear of retaliation.  Open Records Decision No. 208 (1978).

	The requested information consists of affidavits alleging criminal conduct on the 
part of a city employee.  The affidavits were submitted to the supervisor of the city 
department, who subsequently delivered them to the personnel office and police 
department.  We conclude that, in this instance, the informer's privilege may be invoked 
in order to protect the identities of the informants.  If the allegations are correct, 
violations of criminal statutes have clearly occurred.  Because we conclude that the 
requested information is excepted from disclosure under section 3(a)(1), we need not 
discuss exceptions from disclosure under sections 3(a)(3) or 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 Jim Moellinger
Assistant Attorney General

Approved:
Opinion Committee

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