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Office of the Attorney General - State of Texas John Cornyn |
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November 12, 2001 Ms. Jan Clark
OR2001-5232 Dear Ms. Clark: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 154713. The Houston Police Department (the "department") received a request for "the names and badge numbers of all officers, on or off duty, who were on Almeda Road within 1000 feet north of its intersection with Reed Road, during the time frame of 1:30 PM until 2:30 PM on June 5, 2001." The requestor also seeks "any documentation showing the work schedules or dispatch records of any officers located near the intersection of Almeda Road and Reed Road during the above time frame." You inform us that the department has no documents responsive to the request for the identities of officers within 1000 feet of the specified intersection. You claim, however, that certain information pertaining to officers who were at the scene of an incident involving the requestor is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information. First, with regard to the information you state the department does not possess, we note that the Public Information Act (the "Act") does not require a governmental body to create or prepare new information in responding to a request for information. See Attorney General Opinion JM-672; see also Open Records Decision Nos. 452 (1986), 467 (1987). A governmental body must only make a good faith effort to relate a request to information which it holds. See Open Records Decision No. 561 at 8 (1990); see also Open Records Decision No. 87 (1975). We will next address your argument under section 552.108(b)(1) with regard to the information in submitted Exhibit 2 consisting of documents called "Uniformed Officers' Daily Report." Section 552.108 provides, in part: …. (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if: (1) release of the internal record or notation would interfere with law enforcement or prosecution; (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication; …. This office has stated that under the statutory predecessor to section 552.108(b), a governmental body may withhold information that would reveal law enforcement techniques. See, e.g., Open Records Decision Nos. 531 (1989) (release of detailed use of force guidelines would unduly interfere with law enforcement), 456 (1987) (release of forms containing information regarding location of off-duty police officers in advance would unduly interfere with law enforcement), 413 (1984) (release of sketch showing security measures to be used at next execution would unduly interfere with law enforcement), 409 (1984) (if information regarding certain burglaries exhibit a pattern that reveals investigative techniques, information is excepted under section 552.108), 341 (1982) (release of certain information from Department of Public Safety would unduly interfere with law enforcement because release would hamper departmental efforts to detect forgeries of drivers' licenses), 252 (1980) (section 552.108 is designed to protect investigative techniques and procedures used in law enforcement), 143 (1976) (disclosure of specific operations or specialized equipment directly related to investigation or detection of crime may be excepted). To claim this exception, however, a governmental body must meet its burden of explaining, if the requested information does not supply the explanation on its face, how and why release of the requested information would interfere with law enforcement and crime prevention. Open Records Decision No. 562 at 10 (1990). Furthermore, generally known policies and techniques may not be withheld under section 552.108. See, e.g., Open Records Decision Nos. 531 at 2-3 (1989) (Penal Code provisions, common law rules, and constitutional limitations on use of force are not protected under section 552.108), 252 at 3 (1980) (governmental body did not meet burden because it did not indicate why investigative procedures and techniques requested were any different from those commonly known). You state that the reports in Exhibit 2 contain information such as; duty hours of the particular officer(s), their car numbers and unit numbers, daily crime statistics, and the beats to which the officer is assigned. The reports also indicate whether the officer was dispatched to a location or whether the incident was 'on-viewed'. These documents should be withheld ... because they are internal records held by the department that contain information regarding police activity, such as patrol areas and duty times, that are not commonly known or discernible through observation. Such information may unduly interfere with law enforcement and crime prevention as it impairs a [department officer's] ability to arrest a suspect or protect the public by deployment of officers. Release of this information would place an individual at an advantage in avoiding or confronting police officers and would increase his chances of evading arrest or injuring the officer or other persons. Based on your arguments and our review of the information in submitted Exhibit 2, we conclude that release of this information would interfere with law enforcement, and therefore, this information is excepted from disclosure under section 552.108(b)(1). As we resolve your request under this subsection, we need not address your argument under section 552.108(a)(1). 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, Michael A. Pearle
c: Mr. Robert G. Huebner
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |