August 7, 2002

Mr. James L. Hall
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342

OR2002-4336

Dear Mr. Hall:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 167053.

The Texas Department of Criminal Justice (the "department") received one request for copies of sixteen categories of information pertaining to a claim of racial and sexual discrimination. The department received a second request from the same requestor for copies of "written reports, notes, or other written material" related to this claim. The requestor also asks the department several questions in the second request. We note that the Public Information Act does not require a governmental body to prepare answers to questions posed by a requestor. See Open Records Decision Nos. 563 at 8 (1990) (considering request for federal and state laws and regulations), 555 at 1-2 (1990) (considering request for answers to fact questions). 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). You state that you have provided the requestor with most of the responsive information. You claim, however, that the submitted information is excepted from disclosure pursuant to section 552.134 of the Government Code. We have considered the exception you claim and have reviewed the submitted representative exemplar documents.⁽¹⁾

Initially, we note that section 552.301 of the Government Code provides that a governmental body must ask the attorney general for a decision as to whether requested information must be disclosed not later than the tenth business day after the date of receiving the written request for information. See Gov't Code § 552.301(b). We also note that this ten business day period of time is only tolled while a governmental body awaits clarification of a request from a requestor. See Open Records Decision No. 663 (1999). In this instance, the information that the department submitted to us for review indicates that the department received the first written request on April 9, 2002. Therefore, the department had until April 23, 2002 to either request a decision from our office as to whether any portion of the requested information could be withheld from disclosure or seek clarification from the requestor regarding such information. Although the department states that it sent the requestor a letter requesting clarification of several request items, including request item 11 which is the subject of this request for decision, we note that the department did not request such clarification until at least May 15, 2002, the date of the department's letter to the requestor. Therefore, the department failed to either request a decision from us or seek clarification from the requestor regarding request item 11 within the required ten business day deadline mandated by section 552.301(b). Accordingly, we conclude that the department failed to comply with the procedural requirements of section 552.301 of the Government Code. See Gov't Code § 552.301(b).

Because the department failed to request a decision regarding request item 11 within ten business days of receiving the request, the information at issue is presumed public. See Gov't Code § 552.302; see also Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The department must demonstrate a compelling interest to withhold the information in order to overcome this presumption. See id. Normally, a governmental body demonstrates a compelling interest by showing that some other source of law makes the information confidential or that the release of the requested information implicates third party interests. See Open Records Decision No. 150 at 2 (1977). Since section 552.134 of the Government Code constitutes a compelling reason for withholding information from disclosure, we address this claim.

Section 552.134(a) states in pertinent part:

(a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department.

Gov't Code, § 552.134(a). The information at issue concerns an inmate who is confined in a facility operated by the department. However, we note that section 552.134(a) is explicitly made subject to section 552.029 of the Government Code. Basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving an inmate must be released in accordance with section 552.029(8) of the Government Code. See Gov't Code §§ 552.134(a), 552.029(8). This office has determined that basic information under section 552.029(8) includes the time and place of an incident, names of inmates and department officials directly involved in an incident, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding any criminal charges or disciplinary actions filed as a result of the incident. We note that a portion of the information concerns two alleged crimes pertaining to the named inmate regarding assault and indecent exposure. Therefore, except for basic information regarding these two alleged crimes that must be released to the requestor under section 552.029(8), the department must withhold the information from disclosure pursuant to section 552.134.

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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division

RJB/seg

Ref: ID# 167053

Enc. Submitted documents

cc: Mr. Cameron E. Oliver
717 El Paso Street
Jacksonville, Texas 75766
(w/o enclosures)

Footnotes

1. 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.
 

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