May 6, 2002

Ms. Leah Simon
Assistant City Attorney
City of Waco
P.O. Box 2570
Waco, Texas 76702-2570

OR2002-2372

Dear Ms. Simon:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162379.

The City of Waco (the "city") received a request for information relating to a motor vehicle accident. You state that the city will release some of the requested information. You claim that the remaining requested information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code. We have considered the exceptions you raise and have reviewed the information you submitted.

We first note that the city has failed to comply with section 552.301 of the Government Code in requesting this decision. Section 552.301 prescribes procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Section 552.301(b) provides that "[t]he governmental body must ask for the attorney general's decision and state the exceptions that apply . . . not later than the tenth business day after the date of receiving the written request [for information]." Section 552.302 provides that "[i]f a governmental body does not request an attorney general decision as provided by Section 552.301 . . . the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information."

You indicate that the city received this request for information on February 8, 2002. The city's request for this decision, which is postmarked February 27, 2002, was not submitted to this office within the ten business days prescribed by section 552.301(b). Therefore, the information at issue is presumed to be public and must be released under section 552.302, unless there is a compelling reason to withhold any of that information from the public. See also Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ).

The presumption that information is public under section 552.302 can generally be overcome by a demonstration that the information is confidential by law or that third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). The city's claims under sections 552.103 and 552.108 are not compelling reasons for non-disclosure under section 552.302. See also Open Records Decision Nos. 542 at 4 (1990) (governmental body may waive litigation exception), 177 at 3 (1977) (governmental body may waive law enforcement exception). However, the need of another governmental body to withhold information under section 552.108 can provide a compelling reason for non-disclosure under section 552.302. See Open Records Decision Nos. 630 at 3 (1994), 586 at 3 (1991). You assert that the McLennan County District Attorney's Office has a prosecutorial interest in the information at issue. Therefore, we will address the district attorney's claim.

Section 552.108(a)(1) excepts from required public disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if … release of the information would interfere with the detection, investigation, or prosecution of crime[.]" A governmental body that raises section 552.108 must reasonably explain, if the responsive information does not do so on its face, how and why section 552.108 is applicable. See Gov't Code § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986).

You state that the Waco Police Department has referred the case to which the requested information relates to the McLennan County District Attorney's Office. You further state that the district attorney's office has indicated to the police department that the information in question is related to a pending prosecution and that the release of this information would interfere with the prosecution of the case. You have submitted a copy of a communication from the district attorney's office to the police department, requesting that information relating to the case not be released. Based on these representations and our review of the information in question, we find that the release of that information would interfere with the detection, investigation, or prosecution of crime by the McLennan County District Attorney. See Gov't Code § 552.108(a)(1); 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) (court delineates law enforcement interests that are present in active cases); Open Records Decision No. 586 at 3 (1991) (ongoing investigative interests of Texas Department of Public Safety constituted compelling demonstration sufficient to overcome presumption that information held by prosecutor must be released).

Section 552.108 does not except from disclosure "basic information about an arrested person, an arrest, or a crime." Govt. Code § 552.108(c). Section 552.108(c) refers to the basic front-page offense and arrest information held to be public in Houston Chronicle. See 531 S.W.2d at 186-87. The city must release basic information, including a detailed description of the offense, even if that information does not literally appear on the front page of an offense or arrest report. See Open Records Decision No. 127 at 3-4 (1976) (summarizing the types of information deemed public by Houston Chronicle). The city may withhold the remaining requested information 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. Govt. 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. Galbraith, 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. Govt. 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,

James W. Morris, III
Assistant Attorney General
Open Records Division
JWM/sdk
Ref: ID# 162379
Enc: Submitted documents

c: Mr. Theodoros Basdekis
Scarzafava & Basdekis
48 Dietz Street, Suite C
Oneonta, New York 13820
(w/o enclosures)

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