April 3, 2002

Mr. Wiley B. McAfee
Police Legal Advisor
City of Irving
P.O. Box 152288
Irving, Texas 75015-2288

OR2002-1637

Dear Mr. McAfee:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 160701.

The Irving Police Department (the "department") received a written request for ten particular offense reports. You state that the department has released to the requestor one of the offense reports, No. 00-036198, in its entirety, as well as some information from some of the other offense reports. You further state that no offense report exists for No. 00-036196.⁽¹⁾ You contend that the remaining requested information is excepted from required public disclosure pursuant to sections 552.101 and 552.108 of the Government Code.

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." We first note that some of the requested "offense reports" are in fact accident report forms that appear to have been completed pursuant to chapter 550 of the Transportation Code. See Transp. Code § 550.064 (officer's accident report). The release of these accident reports is governed by chapter 550 of the Transportation Code. Section 550.065(b) of the Transportation Code states that except as provided by subsection (c), accident reports are privileged and confidential. The seventy-seventh Legislature amended section 550.065(c)(4) to provide for release of accident reports to a person who provides two of the following three pieces of information: (1) date of the accident; (2) name of any person involved in the accident; and (3) specific location of the accident. Under this provision, the Department of Public Safety or another governmental entity is required to release a copy of an accident report to a person who provides the agency with two or more pieces of information specified by the statute. Id. In this instance, the requestor has not provided the department with two of the three pieces of information. Consequently, the department must withhold the reports numbered 00-036192, 00-036197, and 00-136199 in their entirety pursuant to section 550.065 of the Transportation Code.

We next note that two of the responsive offense reports you submitted to this office concern juvenile conduct. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are made confidential under section 58.007 of the Family Code. The relevant language of section 58.007(c) reads as follows:

(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.

Offense report Nos. 00-036190 and 00-036193 both pertain to instances of alleged juvenile conduct that occurred after September 1, 1997. Accordingly, we conclude that these two offense reports must be withheld in their entirety pursuant to section 58.007(c) of the Family Code in conjunction with section 552.101 of the Government Code.⁽²⁾

Finally, you contend that the remaining requested offense reports are excepted from public disclosure under section 552.108 of the Government Code. Section 552.108(a)(1) generally applies to information held by law enforcement agencies that pertains to pending criminal investigations or prosecutions. Section 552.108(a)(2) protects law-enforcement records that pertain to criminal investigations and prosecutions that have concluded in a result other than a criminal conviction or deferred adjudication. Based on your representations and our review of the submitted records, we conclude that you have met your burden of demonstrating the applicability of section 552.108(a)(1) to offense reports Nos. 00-036194 and 00-036195, and section 552.108(a)(2) to offense report No. 00-036191. The department may therefore withhold most of the information from these offense reports pursuant to section 552.108 of the Government Code.

Section 552.108 does not, however, except from required public disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). Because you have raised no other applicable exception to disclosure, the department must release these types of information from offense reports Nos. 00-036191, 00-036194, and 00-036195 in accordance with Houston Chronicle Publishing Company 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).

In summary, the department must withhold reports numbered 00-036192, 00-036197, and 00-136199 in their entirety pursuant to section 550.065 of the Transportation Code. The department must also withhold offense report Nos. 00-036190 and 00-036193 in their entirety pursuant to section 58.007(c) of the Family Code. Finally, the department may withhold most of offense report Nos. 00-036194, 00-036195, and 00-036191 pursuant to section 552.108, but must release the basic information from each of these reports.

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,

Joyce K. Lowe
Assistant Attorney General
Open Records Division
JKL/RWP/sdk
Ref: ID# 160701
Enc: Submitted documents

c: Mr. Paul Jordan
P.O. Box 154248
Irving, Texas 75015-4248
(w/o enclosures)

Footnotes

1. We assume the department has made a good faith effort to locate this document. See Open Records Decision No. 87 (1975).

2. Because we resolve your request under section 58.007 of the Family Code, we need not address the applicability of section 552.108 of the Government Code to report No. 00-036193.
 

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