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Office of the Attorney General - State of Texas John Cornyn |
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October 9, 2001 Mr. Leonard J. Peck, Jr.
OR2001-4561 Dear Mr. Peck: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 153040. The Texas Department of Criminal Justice (the "department") received a request for Internal Affairs documents, contact log entries, and inter-office communications (" I.O.C.s") regarding the requestor. The request also seeks documentation pertaining to the requestor's work separation, a specified complaint, and an itemized invoice for information requested. You claim that the submitted information is excepted from disclosure under sections 552.108 and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We note that, in her request letter, the requestor indicates that she made a previous request for all information contained in her unit and master personnel files. The requestor has clarified her first request with this second request, which more specifically describes the information she seeks. To the extent any information responsive to the present request exists for which you have not sought a decision from this office, we assume that it has been released. If you have not released any such information, you must release it to the requestor at this time. See Gov't Code §§ 552.301(a), .302. Next, we note that section 552.022 of the Government Code makes certain information expressly public and, therefore, not subject to discretionary exceptions to disclosure. Section 552.022 states in relevant part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and are not excepted from required disclosure under this chapter unless they are expressly confidential under other law. Gov't Code § 552.022. One such category of expressly public information under section 552.022 is "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by [s]ection 552.108[.]" Gov't Code § 552.022(a)(1). You have submitted to this office a "Report of Investigation" from the department's Internal Affairs Division. It appears that the investigation is now closed. Therefore, as prescribed by section 552.022, the submitted Report of Investigation must be released to the requestor unless it is confidential under other law or excepted under section 552.108. Section 552.131 (now section 552.134) of the Government Code is considered "other law" that makes information confidential. Therefore, we will address your claims under sections 552.108 and 552.131 of the Government Code. You contend that the submitted information must be withheld under section 552.131 of the Government Code. Please note that Section 552.131 of the Government Code, as added by chapter 783, Act of the 76th Legislature, relating to inmates of the department, has been renumbered as section 552.134 of the Government Code. See Act of May 22, 2001, 77th Leg., R.S., H.B. 2812, § 21.001(53) (codified at Gov't Code § 552.134). Section 552.134(a) of the Government Code provides: Except as provided by Subsection (b) or by Section 552.029 [of the Government Code], information obtained or maintained by the Texas Department of Criminal Justice is excepted from [required public disclosure] if it is information about an inmate who is confined in a facility operated by or under a contract with the department. Section 552.029 of the Government Code provides: Notwithstanding Section 508.313 or 552.134, the following information about an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice is subject to required disclosure under Section 552.021: . . . . (8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate. Section 552.134 is explicitly made subject to section 552.029. Under section 552.029, basic information regarding the death of an inmate in custody, an alleged crime involving an inmate, and an incident involving the use of force is subject to required disclosure. The submitted information pertains to a department inmate. Further, you indicate that some of the submitted information involves "potential criminal allegations." Accordingly, while the department must generally withhold the submitted information in under section 552.134, it must release all basic information regarding the alleged crimes pursuant to section 552.029(8). Basic information includes the time and place of the incident, names of inmates and department officials directly involved, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding criminal charges or disciplinary actions filed as a result of the incident. You state that the department has released the basic information regarding the alleged crimes by providing the requestor with a copy of your August 14, 2001 brief, which includes some pertinent information about alleged crimes. We emphasize that the Public Information Act requires a governmental body to release a copy of the actual requested record, with excepted information redacted, unless the requestor agrees otherwise. See Open Records Decision No. 606 (1992). You also assert that the submitted information is excepted from disclosure under section 552.108. Section 552.108 does not except the basic information delineated under section 552.029(8). See generally Gov't Code § 552.108(c); Houston Chronicle Publ'g Co. 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); Open Records Decision No. 127 (1976). Accordingly, the basic information under section 552.029(8) is not excepted from disclosure by section 552.108. To summarize, we conclude that, with the exception of the basic information that must be released pursuant to section 552.029(8), the department must withhold the submitted information under section 552.134 This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Karen A. Eckerle
c: Ms. Amanda Kerr
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |