 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 31, 2005 Ms. Valecia R. Tizeno
OR2005-02752 Dear Ms. Tizeno: 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# 221106. The Port Arthur Police Department (the "department") received six requests from five requestors for information pertaining to the investigation of a particular incident. You claim that the requested information not public information under the Act and, in the alternative, that it is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the arguments and exceptions you claim and reviewed the submitted information. Initially, we address your contention that the Act is not applicable to a portion of the submitted information. The Act is applicable to "public information." See Gov't Code § 552.021. "Public information" is defined as information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it. Id. § 552.002(a). Thus, virtually all information that is in the physical possession of a governmental body is public information that is encompassed by the Act. Id. § 552.022(a)(1); see also Open Records Decision Nos. 549 at 4 (1990), 514 at 1-2 (1988). In this instance, you assert that the information at issue is not subject to the Act because it was made by an officer "for reasons unrelated to his duties as a patrol officer." However, information is subject to public disclosure under the Act if it constitutes "public information" as defined by section 552.002. In this instance, the information has subsequently been the subject of an investigation by a Texas Ranger and another investigation at the direction of the Port Arthur City Council. We therefore determine the submitted information is held by the department "in connection with the transaction of official business." Gov't Code § 552.002(a). Thus, the submitted information is subject to the Act and must be released, unless an exception to disclosure is shown to be applicable. Accordingly, we will address your other arguments against disclosure. Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. See Gov't Code § 552.108(a)(2). A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You state that the information relates to a closed investigation in which no criminal charges were filed. Based upon your representations and our review, we agree that section 552.108(a)(2) is applicable to the information. Thus, you may withhold the submitted information under section 552.108. We note that you have the discretion to release all or part of this information that is not otherwise confidential by law. Gov't Code § 552.007.(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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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); Tex. 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, L. Joseph James
c: Mr. Angel San Juan
Mr. Richard De Vayne
Ms. Christine Rappleye
Ms. Edna Gonzalez
Mr. Michael Rickman
Footnotes 1. As our ruling on this issue is dispositive, we need not reach your remaining arguments. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |