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Office of the Attorney General - State of Texas John Cornyn |
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June 14, 2002 Ms. Larissa T. Roeder
OR2002-3219 Dear Ms. Roeder : You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 164291. The Dallas County District Attorney's Office (the "district attorney") received a request for "any and all files, records, and any other documents in the possession of the Dallas County District Attorney's Office" pertaining to a named individual in cases F-87-84373, F-87-85750, F-88-79353, and F-95-52905. The request also sought any and all records regarding the named individual.(1) You claim that the requested information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information.(2) Initially, we address the fifth category of the request, which seeks any and all records regarding the named individual. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." For information to be protected from public disclosure by the common law right of privacy under section 552.101, the information must meet the criteria set out in Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976). In Industrial Foundation, the Texas Supreme Court stated that information is excepted from disclosure if it (1) contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person and (2) is not of legitimate concern to the public. Id. at 685. Where an individual's criminal history information has been compiled by a governmental entity, the information takes on a character that implicates the individual's right to privacy. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). In this instance, in addition to asking for information relating to specified case numbers, the requestor asks the district attorney to compile all other information concerning the named individual. To the extent the requestor asks the department to compile information about this individual, the individual's right to privacy is implicated. Thus, if the district attorney has any records, other than the specifically requested cases, in which the named individual is portrayed as a suspect, defendant, or arrestee, the district attorney must withhold such information under common law privacy as encompassed by section 552.101 of the Government Code. See id. We turn now to the specifically requested case files. We note that the submitted information consists of completed investigations made of, for, or by the district attorney. Section 552.022(a)(1) of the Government Code provides that such information is not excepted from required disclosure under the Public Information Act, except as provided by section 552.108, or unless the information is expressly confidential under other law. Because you claim section 552.108 and other exceptions that would make portions of the submitted information confidential by law, we will address your arguments. Section 552.108 of the Government Code states in pertinent part: (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime [is excepted from required public disclosure] if: . . . . (4) it is information that: (A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or (B) reflects the mental impressions or legal reasoning of an attorney representing the state [and] . . . . (c) This section does not except from [required public disclosure] information that is basic information about an arrested person, an arrest, or a crime. In Curry v. Walker, 873 S.W.2d 379 (Tex. 1994), the Texas Supreme Court held that a request for a district attorney's entire file is necessarily a request for work product because "the decision as to what to include in [the file] necessarily reveals the attorney's thought processes concerning the prosecution or defense of the case." Curry, 873 S.W.2d at 380 (quoting National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 460 (Tex. 1993, orig. proceeding)). With regard to the specifically requested cases, you state that you"interpret[] [the] request as a request for the District Attorney's litigation files" and assert that the "broad request for 'any and all files' and . . . express request for such items as internal memoranda, letters, schedules, notes, marginal notations, etc. clearly constitutes a request for privileged attorney work product information." In this instance, we agree that the request essentially asks for the district attorney's entire case files. Curry provides that the release of this information would reveal the district attorney's mental impressions or legal reasoning. Accordingly, you may withhold the specifically requested files pursuant to section 552.108(a)(4)(B) of the Government Code except as noted below. Section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). We believe such basic information refers to the information held to be public in 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 Open Records Decision No. 127 (1976), this office summarized the types of information made public pursuant to Houston Chronicle. See Open Records Decision No. 127 at 4 (1976). This information must be released whether or not the information is found on the front page of an offense report. In summary, the district attorney must withhold any records, other than the specifically requested case files, that portray the named individual as a suspect, arrestee, or defendant. The specifically requested case files may also be withheld, with the exception of basic front page information, which must be released. As our ruling on these issues is dispositive, we need not address your remaining arguments. 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, Denis C. McElroy
c: Ms. Cheryl B. Wattley
Footnotes 1. The requestor also seeks information regarding three other individuals. The district attorney has submitted a separate ruling request for each of the named individuals. This ruling addresses only the first individual identified in the request. 2. We assume that the representative sample of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |