 Office of the ATTORNEY GENERAL GREG ABBOTT | |
|
December 9, 2003 Ms. Julie Joe
OR2003-8839 Dear Ms. Joe: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 192340. The Travis County District Attorney's Office (the "DA") received a request for "any and all documents relating to the recent trial" of a named individual. You claim that the requested information is excepted from disclosure under sections 552.101, 552.108, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note that the requested information includes an arrest warrant and arrest warrant affidavit. The 78th Legislature recently amended article 15.26 of the Code of Criminal Procedure to add language providing: The arrest warrant, and any affidavit presented to the magistrate in support of the issuance of the warrant, is public information, and beginning immediately when the warrant is executed the magistrate's clerk shall make a copy of the warrant and the affidavit available for public inspection in the clerk's office during normal business hours. A person may request the clerk to provide copies of the warrant and affidavit on payment of the cost of providing the copies. Act of May 31, 2003, 78th Leg., R.S., ch. 390, § 1, 2003 Tex. Sess. Laws Serv. 1631 (to be codified as an amendment to Crim. Proc. Code art. 15.26). In this instance, the submitted information includes an executed arrest warrant as well as an affidavit presented to a magistrate in support of the warrant. Article 15.26 of the Code of Criminal Procedure makes these documents public. As a general rule, the exceptions found in chapter 552 of the Government Code do not apply to information that is made public by other statutes. See Open Records Decision Nos. 623 at 3 (1994), 525 at 3 (1989). Therefore, the arrest warrant and supporting affidavit that we have marked must be released to the requestor. Next, we note that the remainder of the submitted information constitutes a completed investigation that is made of, for, or by the district attorney. Section 552.022(a)(1) provides "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body" constitutes "public information... not excepted from required disclosure... unless... expressly confidential under other law" or excepted from disclosure under section 552.108 of the Government Code. Gov't Code § 552.022(a)(1). Although the DA claims section 552.111 for this information, section 552.111 is a discretionary exception that protects a governmental body's interests and may be waived. As such, it is not other law that makes information confidential for the purposes of section 552.022. See Open Records Decision Nos. 676 at 6 (2002) (section 522.111 is not "other law" for purposes of section 552.022), 522 (1989) (discretionary exceptions in general). Therefore, the submitted information may not be withheld pursuant to section 552.111. However, because the DA claims that the submitted information is also excepted from disclosure under section 552.108 of the Government Code, we will address this claim now. Section 552.108 provides in 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. You cite to subsection 552.108(a)(4) in connection with your assertion of attorney work product. When a request essentially seeks the entire prosecution file, the information is excepted from disclosure in its entirety. Curry v. Walker, 873 S.W.2d 379 (Tex. 1994) (discovery request for district attorney's entire litigation file may be denied because decision of what to include in file necessarily reveals prosecutor's mental impressions or legal reasoning). In this instance, we agree that the request encompasses the prosecutor's entire case file. Curry thus provides that the release of the information would reveal the prosecutor's mental impressions or legal reasoning. Accordingly, except as otherwise noted herein, you may withhold the remaining submitted information pursuant to subsection 552.108(a)(4)(B) of the Government Code.(1) 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). 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). Basic information includes the identification and description of the complainant. Open Records Decision No. 127 (1976). However, information tending to identify the sexual assault victim is private information that must be withheld. Gov't Code § 552.101 (excepts information made confidential by judicial decision and encompasses common-law privacy); see Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977); Open Records Decision Nos. 393 (1983), 339 (1982). In this instance, the requestor has a special right of access to information pertaining to his client that is otherwise protected under the common-law right of privacy. See Gov't Code § 552.023 (person or person's authorized representative has special right of access to information that is protected by laws intended to protect person's privacy). Thus, the DA must release all of the basic information to the requestor. In summary, the arrest warrants and supporting affidavits that we have marked must be released pursuant to article 15.26 of the Code of Criminal Procedure. The remaining submitted information is excepted from disclosure under subsection 552.108(a)(4)(B) of the Government Code. However, you must release all basic 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, Debbie K. Lee
Enc. Submitted documents c: Mr. Robert Schmidt
Footnotes 1. As our subsection 552.108(a)(4) ruling is dispositive, we do not address your other arguments. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |