March 16, 2004

Mr. Mark G. Mann
Assistant City Attorney
City of Garland
P.O. Box 469002
Garland, Texas 75046-9002

OR2004-1960

Dear Mr. Mann:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 197654.

The Garland Police Department (the "department") received a request for a particular police report. You state that some information has been released but claim that other requested information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note that the submitted information constitutes completed reports made of, for, or by a governmental body. Section 552.022 of the Government Code provides that "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).

The department claims that portions of the submitted information may be withheld pursuant to sections 552.108 and 552.130 and contends that witness information is protected by the informer's privilege. Texas courts have long recognized the common law informer's privilege, as incorporated into chapter 552 of the Government Code by section 552.101.⁽¹⁾ See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928); see also Roviaro v. United States, 353 U.S. 53, 59 (1957). However, the common law informer's privilege exists to protect a governmental body's interest and may be waived by the governmental body. Therefore, this privilege is not other law that makes information confidential for purposes of section 552.022, and none of the submitted information may be withheld on this basis. See Open Records Decision No. 549 at 6 (1990).

We note, however, that the informer's privilege is also in Rule 508 of the Texas Rules of Evidence. The Texas Supreme Court has held that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). Therefore, we will determine whether any of the submitted information is confidential under Rule 508. Rule 508 provides, in relevant part:

(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects.

Tex. R. Evid. 508(a), (b). Thus, an informer's identity is confidential under Rule 508 if a governmental body demonstrates that an individual has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation, and the information does not fall within the purview of the exceptions to the privilege enumerated in Rule 508(c).

Based on our review of your arguments and the information at issue, we conclude that release of the information you have highlighted in purple would disclose the identity of a person who has furnished a law enforcement officer with information relating to or assisting in an investigation of a possible violation of a law. See Tex. R. Evid. 508. Further, it does not appear that any of the exceptions to the privilege enumerated in Rule 508(c) apply in this instance. Consequently, we conclude that the witness information you have marked is excepted from public disclosure pursuant to Rule 508 of the Texas Rules of Evidence.

We turn now to your arguments regarding section 552.108 of the Government Code. This section 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 the requirements of Section 552.021 if:

(1) release of the information would interfere with the detection, investigation or prosecution of crime[.]

Gov't Code § 552.108(a)(1). Generally, a governmental body claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See Gov't Code §§ 552.108(a)(1), (b)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that the submitted reports relate to a pending criminal investigation. Based upon this representation, we conclude that the release of the yellow-highlighted information would interfere with the detection, investigation, or prosecution of crime. 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, however, that basic information normally found on the front page of an offense report is generally considered public. See generally Gov't Code § 552.108(c); Houston Chronicle, 531 S.W.2d 177; Open Records Decision No. 127 (1976). Thus, you must release the types of basic information that are considered to be front page offense report information, even if this information is not actually located on the front page of the offense report. You state that the department has released copies of portions of the offense report and believes it has satisfied its disclosure obligations under Houston Chronicle and section 552.108(c).⁽²⁾ Although section 552.108(a)(1) authorizes you to withhold the information you have marked in yellow from disclosure, you may choose to release all or part of the information at issue that is not otherwise confidential by law. See Gov't Code § 552.007.

Finally, we note that the submitted information not otherwise marked in yellow or in purple contains a Texas driver's license number, which you have marked in orange. Section 552.130 of the Government Code excepts from disclosure "information [that] relates to: . . . (2) a motor vehicle title or registration issued by an agency of this state." Gov't Code § 552.130(a)(2). Pursuant to this provision, the department must withhold the Texas driver's license number it has marked in orange.

In summary, the department may withhold the purple-highlighted witness information under Rule 508. With the exception of basic information, the department may withhold the information it has marked in yellow pursuant to section 552.108(a)(1). The Texas license plate number that is marked in orange must be withheld pursuant to section 552.130. The remaining submitted information must be released 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,

Cindy Nettles
Assistant Attorney General
Open Records Division
CN/jh
Ref: ID# 197654
Enc. Submitted documents

c: Mr. Terry Copeland
3335 Wise Drive
Mesquite, Texas 75150
(w/o enclosures)

Footnotes

1. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."

2. We note that basic information does not include the identification and description of witnesses, statements by informants, or driver's license or license plate numbers.