 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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November 5, 2003 Mr. Brad Norton
OR2003-7958 Dear Mr. Norton: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 189966. The City of Austin (the "city") received a request for six categories of information related to the collection and creation of materials for inclusion in an intelligence database and the creation, maintenance, and operation of such a database focused on materials related to protests, meetings, and public activities of certain individuals and organizations. You state that the city does not maintain any information that is responsive to items one and two of the request.(1) You also state that the city is providing the requestor with some information that is responsive to item four of the request. You claim that the remaining requested information is excepted from disclosure pursuant to sections 552.101, 552.103, 552.108, and 552.119 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted representative sample documents.(2) You claim that portions of the submitted information are excepted from disclosure pursuant to section 552.108 of the Government Code. Section 552.108(a)(1) provides that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from disclosure if "release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). Section 552.108(a)(2) protects records pertaining to criminal investigations or prosecutions that have concluded in a final result other than conviction or deferred adjudication. See Gov't Code § 552.108(a)(2). Generally, a governmental body claiming section 552.108(a)(1) as an exception to disclosure of requested information must demonstrate, if the information does not supply the explanation on its face, how and why the release of the requested information would interfere with law enforcement or prosecution. See Gov't Code §§ 552.108(a), (b), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). A governmental body claiming section 552.108(a)(2) as an exception to disclosure of requested information must demonstrate, if the information does not supply the explanation on its face, that the requested information pertains to a criminal case that has concluded in a final result other than conviction or deferred adjudication. See id. Although you state that portions of the submitted information pertain to closed criminal investigations, we note that you have marked these portions as pertaining to pending criminal investigations. Furthermore, you state that portions of the submitted information pertain to pending criminal cases. Therefore, based on all of your representations and our review of these portions of the submitted information, we find that the release of most of this information "would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a). Thus, we find that section 552.108(a)(1) is applicable to most of this particular information. Section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. See Gov't Code § 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle Publishing 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). See Open Records Decision No. 127 (1976) (summarizing types of basic information that must be made available to public, including detailed description of offense). Accordingly, with the exception of basic information that must be released, we conclude that the city may withhold this marked information pursuant to section 552.108(a)(1) of the Government Code. The city maintains the discretion to release all or part of this particular information that is not otherwise confidential by law.(3) See Gov't Code § 552.007. However, we note that you have failed to adequately demonstrate how or why the release of a portion of the information that you claim to be excepted from disclosure under section 552.108 would interfere with the detection, investigation, or prosecution of crime. See Open Records Decision No. 434 at 3 (unless records show on face that disclosure would interfere with law enforcement or prosecution, law enforcement agency must explain how release of particular records or parts thereof will do so). Accordingly, we conclude that the city may not withhold this portion of the information, which we have marked, under section 552.108 of the Government Code. You also claim that this particular portion of the submitted information is excepted from disclosure under section 552.103 of the Government Code. Section 552.103 provides in pertinent part: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. Gov't Code, § 552.103(a),(c). The city maintains the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated on the date that the governmental body receives the request for information and (2) the information at issue is related to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); see also Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The city must meet both prongs of this test for information to be excepted under section 552.103(a). A governmental body must provide this office with "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture" when establishing that litigation is reasonably anticipated. See Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party.(4) See Open Records Decision Nos. 555 (1990), 518 at 5 (1989) (litigation must be "realistically contemplated"). A governmental body may also establish that litigation is reasonably anticipated by showing that it has received a claim letter from an allegedly injured party or his attorney and by stating that the letter complies with the notice of claim provisions of the Texas Tort Claims Act (TTCA) or an applicable municipal ordinance or statute. See Open Records Decision No. 638 (1996). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). Although you state, and provide documentation showing, that the city received notices of claim that meets the notice requirements of the TTCA, we find that the city has failed to adequately demonstrate that any portion of the information at issue relates to any reasonably anticipated litigation that may exist as a result of these notices. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 483 (Tex. App.--Austin 1997, no pet.) ("Ordinarily, the words 'related to' mean 'pertaining to,' 'associated with' or 'connected with.'"); see also Open Records Decision Nos. 551 at 5 (1990) (attorney general will determine whether governmental body has reasonably established that information at issue is related to litigation). Accordingly, we conclude that the city may not withhold any portion of this particular information pursuant to section 552.103 of the Government Code. Consequently, the city must release the entirety of this information to the requestor. You also claim that portions of the submitted information are excepted from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 418.176 of the Government Code. Section 552.101 excepts from disclosure "information deemed confidential by law, either constitutional, statutory, or by judicial decision" and encompasses information protected by other statutes. See Gov't Code § 552.101. Section 418.176 provides in relevant part: Sec. 418.176. CONFIDENTIALITY OF CERTAIN INFORMATION RELATING TO EMERGENCY RESPONSE PROVIDERS. (a). Information is confidential if the information is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity and: (1) relates to staffing requirements of an emergency response provider, including law enforcement agency, a fire-fighting agency, or an emergency services agency; (2) relates to a tactical plan of the provider; or (3) consists of a list or compilation of pager or telephone numbers, including mobile and cellular telephone numbers, of the provider. Act of June 2, 2003, 78th Leg., R.S., ch. 1312, § 3, 2003 Tex. Sess. Law Serv. 4814 (to be codified at Gov't Code § 418.176). You state that "[o]bviously, the protests were nothing like an 'act of terrorism or related criminal activity,' but some of the responsive information relating to procedures includes information that was 'collected, assembled, or maintained' by the Austin police department 'for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity.'" You failed to mark any of the information for which you assert section 418.176. After careful consideration of your argument and our review of the information at issue, it is apparent to this office, however, that the submitted police department policies and procedures were collected, assembled, or maintained for purposes other than "preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity." Id. Therefore, we find that no portion of the submitted police department policies and procedures is confidential under section 418.176. Consequently, the city may not withhold any portion of the requested information under section 552.101 of the Government Code on that basis. Finally, you claim that portions of the submitted information are excepted from disclosure pursuant to section 552.108(b)(1) of the Government Code. Section 552.108(b) excepts from disclosure "[a]n 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 . . . if: (1) release of the internal record or notation would interfere with law enforcement or prosecution[.]" Gov't Code § 552.108(b)(1). Section 552.108(b)(1) is intended to protect "information which, if released, would permit private citizens to anticipate weaknesses in a police department, avoid detection, jeopardize officer safety, and generally undermine police efforts to effectuate the laws of this State." City of Ft. Worth v. Cornyn , 86 S.W.3d 320 (Tex. App.-Austin 2002, no writ). This office has stated that under the statutory predecessor to section 552.108(b), a governmental body may withhold information that would reveal law enforcement techniques. See, e.g., Open Records Decision Nos. 531 (1989) (release of detailed use of force guidelines would unduly interfere with law enforcement), 456 (1987) (release of forms containing information regarding location of off-duty police officers in advance would unduly interfere with law enforcement), 413 (1984) (release of sketch showing security measures to be used at next execution would unduly interfere with law enforcement), 409 (1984) (if information regarding certain burglaries exhibits pattern that reveals investigative techniques, information is excepted under section 552.108), 341 (1982) (release of certain information from Department of Public Safety would unduly interfere with law enforcement because release would hamper departmental efforts to detect forgeries of drivers' licenses), 252 (1980) (section 552.108 designed to protect investigative techniques and procedures used in law enforcement), 143 (1976) (disclosure of specific operations or specialized equipment directly related to investigation or detection of crime may be excepted). However, in order for a governmental body to claim this exception to disclosure, it must meet its burden of explaining, if the requested information does not supply the explanation on its face, how and why release of the requested information would interfere with law enforcement and crime prevention. See Open Records Decision No. 562 at 10 (1990). Furthermore, generally known policies and techniques may not be withheld under section 552.108. See, e.g., Open Records Decision Nos. 531 at 2-3 (1989) (Penal Code provisions, common law rules, and constitutional limitations on use of force not protected under section 552.108), 252 at 3 (1980) (governmental body did not meet burden because it did not indicate why investigative procedures and techniques requested were different from those commonly known). Whether disclosure of particular records will interfere with law enforcement or prosecution must be decided on a case-by-case basis. See Attorney General Opinion MW-381 (1981). Based on our review of the information at issue, we find that the release of portions of this information, which we have marked, would interfere with law enforcement or crime prevention. Accordingly, we conclude that the city may withhold this marked information pursuant to section 552.108(b)(1). However, we also find that the city has failed to demonstrate that the release of any portion of the remaining information at issue would interfere with law enforcement or crime prevention. See Gov't Code § 552.108(b)(1); see also Open Records Decision No. 508 at 4 (1988) (governmental body must demonstrate how release of particular information would interfere with law enforcement efforts unless information does so on its face). Accordingly, we also conclude that the city may not withhold any portion of the remaining information at issue under section 552.108(b)(1) of the Government Code. In summary, with the exception of basic information that must be released, the city may withhold the information that we have marked pursuant to section 552.108(a)(1) of the Government Code. The city may also withhold the information that we have marked pursuant to section 552.108(b)(1) of the Government Code. However, the city must release the remaining submitted information to the requestor. 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, Ronald J. Bounds
c: Ms. Annette M. Lamoreaux
Footnotes 1. We note that it is implicit in several provisions of the Public Information Act (the "Act") that the Act applies only to information already in existence. See Gov't Code §§ 552.002, .021, .227, .351. The Act does not require a governmental body to prepare new information in response to a request. See Attorney General Opinion H-90 (1973); see also Open Records Decision Nos. 572 at 1 (1990), 555 at 1-2 (1990), 452 at 2-3 (1986), 416 at 5 (1984), 342 at 3 (1982), 87 (1975); Economic Opportunities Dev. Corp. of San Antonio v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App. -San Antonio 1978, writ dism'd). 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). 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. 3. Because we base our ruling with respect to this particular information on section 552.108(a)(1) of the Government Code, we need not address the applicability of your remaining arguments with regard to this information. We note that "basic information" may not generally be withheld under section 552.103 of the Government Code. See Open Records Decision Nos. 597 (1991), 362 (1983). 4. In addition, this office has concluded that litigation was reasonably anticipated when the potential opposing party took the following objective steps toward litigation: hired an attorney who made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open Records Decision No. 346 (1982); and threatened to sue on several occasions and hired an attorney, see Open Records Decision No. 288 (1981). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |