 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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July 14, 2003 Ms. R. Yvette Clark
OR2003-4836 Dear Ms. Clark: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 184083. The Stephen F. Austin State University Police Department (the "department") received a request for "any file pertaining to [a named individual]" and information regarding the restriction of the individual's access to the campus of Stephen F. Austin State University. You state that you have released some information and claim that other requested information is excepted from disclosure under sections 552.026, 552.101, 552.108, 552.114, and 552.136 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Because your claim regarding section 552.108 is the broadest, we address it first. This section provides 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: (1) release of the information would interfere with the detection, investigation or prosecution of crime; [or] (2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication; . . . . (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if: (1) release of the internal record would interfere with law enforcement or prosecution of crime; [or] (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.] Gov't Code § 552.108(a)(1), (2), (b)(1), (2). Generally speaking, subsections 552.108(a)(1) and 552.108(b)(1) are mutually exclusive of subsections 552.108(a)(2) and 552.108(b)(2). Subsection 552.108(a)(1) protects information the release of which would interfere with a particular pending criminal investigation or prosecution while subsection 552.108(b)(1) covers internal law enforcement and prosecution records the release of which would interfere with on-going law enforcement and prosecution efforts in general. In contrast, subsections 552.108(a)(2) and 552.108(b)(2) protect information that relates to concluded criminal investigations or prosecutions that did not result in conviction or deferred adjudication. In this instance, you indicate that the submitted information pertains to closed criminal investigations that did not result in conviction or deferred adjudication. Based on this representation, we agree that section 552.108(a)(2) is applicable to the submitted information. We note, however, that information normally found on the front page of an offense or arrest report is not generally excepted under section 552.108. See generally Gov't Code § 552.108(c); Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 185 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976); Open Records Decision No. 127 (1976). Thus, you must release the types of information that are considered to be front page offense or arrest report information, including a detailed description of each offense, even if this information is not actually located on the front page of the report. Although section 552.108 authorizes the department to withhold the remaining information, it may choose to release all or part of the information that is not otherwise confidential by law. See Gov't Code § 552.007; Open Records Decision No. 177 (1977). As our ruling on this issue is dispositive, we need not address your remaining arguments.(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. 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, Denis C. McElroy
c: Mr. Jeremy S. Willis
Footnotes 1. Although you also raise the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g, for the submitted information, records maintained by a law enforcement unit of an educational agency or institution that are created by that law enforcement unit for purposes of law enforcement are excluded from the definition of "education records" under FERPA. See 20 U.S.C. § 1232g(a)(4)(ii). Because the submitted records were created by a law enforcement unit for purposes of law enforcement, FERPA does not apply to them. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |