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Office of the Attorney General - State of Texas John Cornyn |
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April 1, 2002 Ms. Sara Hartin
OR2002-1565 Dear Ms. Hartin: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 160858. The City of Killeen (the "city") received a request for records and documents related to an animal control incident on Marsh Drive. You state that the city has released some responsive information to the requestor. You claim that the remainder of the requested information is excepted from disclosure under sections 552.101, 552.103, 552.108, and 552.130 of the Government Code. You contend that the submitted docket sheets are not subject to a request under the Public Information Act (the "Act") because they are records of the judiciary. You also claim that a military identification number contained in the submitted documents is not subject to the Act but rather is subject to the federal Freedom of Information Act. We have considered the exceptions you claim and reviewed the submitted information. First, we agree that court dockets submitted as Exhibit G are not subject to a request under the Act to the extent that they are records of the judiciary, i.e. records of the city's municipal court. See Gov't Code § 552.002 (public information subject to the act means information collected, assembled, maintained by or for a "governmental body"), § 552.003(1)(B) ("Governmental body" subject to the act does not include the judiciary). We caution, however, that to extent the city maintains such records apart from municipal court records and such municipal court records are public, they must be released. See Gov't Code § 552.022(a)(17) (information also contained in public court record must be released unless confidential by law). The informer's privilege, incorporated into the Act by section 552.101(1), has long been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928). It protects from disclosure the identities of persons who report activities over which the governmental body has criminal or quasi-criminal law-enforcement authority, provided that the subject of the information does not already know the informer's identity. Open Records Decision Nos. 515 at 3 (1988), 208 at 1-2 (1978). The informer's privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to "administrative officials having a duty of inspection or of law enforcement within their particular spheres." Open Records Decision No. 279 at 2 (1981) (citing Wigmore, Evidence, § 2374, at 767 (McNaughton rev. ed. 1961)). The report must be of a violation of a criminal or civil statute or law. See Open Records Decision Nos. 582 at 2 (1990) , 515 at 4-5 (1988). However, the informer's privilege protects the content of the communication only to the extent that it identifies the informant. See Roviaro v. United States, 353 U.S. 53, 59 (1957). You advise us that the city's animal control officers are administrative officials having a duty of inspection and of law enforcement within their particular spheres. You inform us that two citations were issued to the owner of the dogs, and that the offenses for which the citations were issued are Class C misdemeanors. In this case, the identity of the informant is excepted from required public disclosure by the informer's privilege and section 552.101. We have marked the documents accordingly. Section 552.103 provides as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. The city has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The city must meet both prongs of this test for information to be excepted under 552.103(a). You state that the two citations are pending before the Killeen Municipal court. You inform us that a pre-trial hearing is scheduled in each case in March, 2002, and have submitted court docket sheets which verify this information. Having considered your arguments and reviewed the information at issue, we find that litigation is pending and the submitted information in Exhibits C, D, E, and F relates to that litigation. Therefore, the city may withhold the information in Exhibits C, D, E, and F under section 552.103 of the Government Code. Generally, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Front page offense report information, held to be public in 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), which you claim the city has already released to the requestor, is not excepted from public disclosure under section 552.103 of the Government Code. Basic information includes a detailed description of the offense as well as an arrestee's name, race, and age. Id.; Open Records Decision No. 127 (1976). As the military identification number and driver's license number are not considered to be "basic information," we do not address your arguments against release of those numbers.(2) 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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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, Cindy Nettles
c: Mr. Michael Gamel
Footnotes 1. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." 2. As sections 552.101 and 552.103 are dispositive, we do not reach your remaining arguments. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |