 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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April 7, 2003 Mr. T. Daniel Santee II
OR2003-2322 Dear Mr. Santee: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 178963. The City of Abilene (the "city") received a request for nineteen categories of information relating to a motor vehicle accident. You inform us that you have provided the requestor with a copy of the responsive accident report. You state that some of the requested information is the subject of a previous open records letter ruling. You contend that section 552.027 of the Government Code excuses the city from releasing information that is responsive to item number 13 of the request for information. You inform us that, to your knowledge, the city has no information that is responsive to item numbers 4, 5, 6, 7, 8, 9, 17, or 18 of the request. Chapter 552 of the Government Code does not require the city to release information that did not exist when it received this request or to create responsive information. See Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 452 at 3 (1986), 362 at 2 (1983). You also state that the city is not the custodian of any information that is responsive to item numbers 12 and 14 of the request. Chapter 552 of the Government Code does not require the city to take affirmative steps to create or obtain information that is not in its possession, so long as no other individual or entity holds that information on behalf of the governmental body that receives the request for it. See Gov't Code § 552.002(a); Open Records Decision Nos. 534 at 2-3 (1989), 518 at 3 (1989).(1) You claim that the information that is responsive to item numbers 1, 2, 11, 15, 16, and 19 of the request is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and have reviewed the information you submitted. We note that your request for this decision does not address item number 10 of the request for information. We therefore assume that you have released any information generally encompassed by item number 10 of the request that you do not otherwise specifically seek to withhold. If not, then you must release any such information that was within the city's custody or control when it received this request for information. See Gov't Code §§ 552.301, .302; Open Records Decision No. 664 (2000). You state that the photographs and videotape that are responsive to item number 3 of this request for information are the subject of Open Records Letter No. 2003-0464 (2000). In that decision, we concluded that the photographs and videotape are excepted from disclosure under section 552.108(a)(1) of the Government Code. You do not inform us, nor are we otherwise aware, of any change in the law, facts, or circumstances on which the prior ruling is based. Accordingly, we conclude that the city may continue to rely on Open Records Letter No. 2003-0464 (2003) with regard to the requested photographs and videotape that are the subject of that decision. See Gov't Code § 552.301(a); Open Records Decision No. 673 at 6-7 (2001) (attorney general decision constitutes first type of previous determination under Gov't Code § 552.301(a) when (1) precisely same records or information previously were submitted under Gov't Code § 552.301(e)(1)(D); (2) same governmental body previously requested and received ruling; (3) prior ruling concluded that same records or information are or are not excepted from disclosure; and (4) law, facts, and circumstances on which prior ruling was based have not changed). You also contend that section 552.027 of the Government Code excuses the city from releasing any newsprint and/or press releases that are responsive to item number 13 of the request because such information is commercially available. Section 552.027 provides in part: (a) A governmental body is not required under this chapter to allow the inspection of or to provide a copy of information in a commercial book or publication purchased or acquired by the governmental body for research purposes if the book or publication is commercially available to the public. … (c) A governmental body shall allow the inspection of information in a book or publication that is made part of, incorporated into, or referred to in a rule or policy of a governmental body. Gov't Code § 552.027(a), (c). You have not submitted any newsprint or press releases that are responsive to item number 13 of the request. See Gov't Code §§ 552.301, .302. Furthermore, you do not inform us that any responsive newsprint or press releases are contained in a commercial book or publication that was purchased or acquired for research purposes. See id. § 552.027(a). Therefore, the city must release any newsprint and/or press releases that are responsive to item number 13 of this request for information. We next note that the submitted information includes a search warrant affidavit. The release of this information is governed by article 18.01 of the Code of Criminal Procedure, which provides in part: (b) No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. The affidavit is public information if executed, and the magistrate's clerk shall make a copy of the affidavit available for public inspection in the clerk's office during normal business hours. Crim. Proc. Code art. 18.01(b). Thus, in the instance of a search warrant that was executed, the city must release the supporting search warrant affidavit under article 18.01(b). In this instance, the affidavit relates to a search warrant that was executed. Therefore, the search warrant affidavit that we have marked must be released in accordance with article 18.01(b) of the Code of Criminal Procedure. See also Open Records Decision No. 623 at 3 (1994) (exceptions to public disclosure under Gov't Code ch. 552 generally not applicable to information that another statute expressly makes public). Next, we address your claim under section 552.108 of the Government Code with regard to the information that is responsive to item numbers 1, 2, 11, 15, 16, and 19 of the request. Section 552.108(a)(1) excepts from 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 requested information does not supply an explanation on its face, how and why section 552.108 is applicable to that information. 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 information that is responsive to item numbers 1, 2, 11, 15, 16, and 19 of this request relates to an active investigation and likely prosecution. Based on your representation, we find that section 552.108(a)(1) is applicable in this instance. See 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). We note that 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). Section 552.108(c) refers to the basic front-page information held to be public in Houston Chronicle. The city must release basic information, including a detailed description of the offense, even if this information does not literally appear on the front page of an offense or arrest report. See Houston Chronicle, 531 S.W.2d at 186-87; Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). The city may withhold the rest of the information that is responsive to item numbers 1, 2, 11, 15, 16, and 19 of the request under section 552.108(a)(1). In summary, the city may continue to rely on Open Records Letter No. 2003-0464 (2000) with regard to the photographs and videotape that are responsive to item number 3 of this request for information. The city must release any newsprint and/or press releases that are responsive to item number 13 of the request. The city must release the marked search warrant affidavit under article 18.01(b) of the Code of Criminal Procedure. The city may withhold the information that is responsive to item numbers 1, 2, 11, 15, 16, and 19 of the request under section 552.108(a)(1) of the Government Code, but must release basic information in accordance with section 552.108(c). 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 Dep't of Pub. 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, James W. Morris, III
c: Mr. William Book
Footnotes 1. You also claim that, should the city be in possession of any information that is responsive to item numbers 12 and 14 of the request, such information is excepted from disclosure under section 552.108. This decision addresses only the information that you submitted and seek to withhold under section 552.108. See Gov't Code § 552.301(e)(1)(D). Should you seek to withhold any information that is responsive to item numbers 12 or 14 of the request, you must request another decision. See id. §§ 552.301(a), .302. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |