 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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September 20, 2005 Sergeant Jim Whitehead
OR2005-08580 Dear Sergeant Whitehead: 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# 232661. The North Texas Regional Drug Enforcement Task Force (the "task force") received a request for nine categories of information pertaining to task force case logs, agents, and confidential informants, excluding the names and identifying information of any current informants. You state that you have provided the requestor with a portion of the requested information. You further state that you have no information responsive to several categories of the request. We note that the Act does not require a governmental body to disclose information that did not exist at the time the request was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex.Civ.App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986). You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information, some of which consists of representative samples.(1) Initially, we note that the submitted documents include information that is specifically excluded by the precise language of the request. The requestor has excluded the names and identifying information of current confidential informants. Accordingly, any of this information within the requested documents is not responsive to the present request. This ruling does not address the public availability of any information that is not responsive to the present request, and the task force need not release that information in response to this request. See Bustamante, 562 S.W.2d at 266. Next, we note that portions of the submitted information are subject to section 552.022 of the Government Code, which provides in relevant part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] Gov't Code § 552.022(a)(3). The submitted information includes vouchers and receipts relating to the expenditure of public funds by the task force. Accordingly, the task force must release this information unless it is confidential under other law. Although you argue that this information is excepted from disclosure under section 552.108 of the Government Code, this section is discretionary and, therefore, does not constitute "other law" for purposes of section 552.022. See Open Records Decision No. 177 (1977) (governmental body may waive statutory predecessor to section 552.108); see also Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). Thus, the task force may not withhold the information subject to section 552.022(a)(3) under section 552.108 of the Government Code. You also raise the common law informer's privilege, as incorporated by section 552.101 of the Government Code. The common law informer's privilege is "other law" for the purpose of section 552.022. See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001); Tex. Comm'n on Envtl. Quality v. Abbott, No. GN-204227 (126th Dist. Ct., Travis County, Tex.). Thus, we will consider your arguments under the common law informer's privilege. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses the common law informer's privilege, which has long been recognized by Texas courts. 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). It protects from disclosure the identities of persons who report activities over which the governmental body has criminal or quasi-criminal law-enforcement authority, provided that the subject of the information does not already know the informer's identity. Open Records Decision Nos. 515 at 3 (1988), 208 at 1-2 (1978). The informer's privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to "administrative officials having a duty of inspection or of law enforcement within their particular spheres." Open Records Decision No. 279 at 2 (1981) (citing Wigmore, Evidence, § 2374, at 767 (McNaughton rev. ed. 1961)). The report must be of a violation of a criminal or civil statute. See Open Records Decision Nos. 582 at 2 (1990), 515 at 4-5 (1988). The privilege excepts an informer's statement only to the extent necessary to protect the informer's identity. See Open Records Decision No. 549 at 5 (1990). However, witnesses who provide information in the course of an investigation but do not make the initial report of the violation are not informants for the purposes of claiming the informer's privilege. The task force raises the common law informer's privilege for the names and identifying information of inactive confidential informants. Upon review, we agree that the submitted information clearly concerns reported violations of criminal statutes made to officials with the duty of enforcing that statute. Accordingly, the identities of these informants is therefore excepted from disclosure under section 552.101 of the Government Code in conjunction with the informer's privilege. See Open Records Decision Nos. 279 at 2 (1981), 156 (1977) (granting informer's privilege for the identity of an individual who reported to a city animal control division a possible violation of a statute that carried with it criminal penalties). The task force must withhold any information in the submitted documents that reveals the identity of the informants at issue pursuant to section 552.101 of the Government Code. We now address your arguments under section 552.108 of the Government Code for the information not subject to section 552.022. Section 552.108 provides in relevant part as follows: (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; . . . (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 [required public disclosure] if: (1) release of the internal record or notation would interfere with law enforcement or prosecution; Gov't Code § 552.108(a)(1), (b)(1). Generally, a governmental body claiming subsection 552.108(a)(1) or 552.108(b)(1) must reasonably explain, 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. 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). Although the task force raises section 552.108 for the personnel and disciplinary files of task force officers, it has failed to provide any arguments explaining how the release of this information would interfere with the detection, investigation, or prosecution of crime. See Gov't Code § 552.301(e) (governmental body must provide comments explaining why exceptions raised should apply to information requested); see also City of Fort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.--Austin 2002, no pet.) (finding section 552.108 not generally applicable to information relating to complaints involving law enforcement officers); Open Records Decision No. 562 at 10 (1990) (stating law enforcement exception does not protect general personnel information about a peace officer or information concerning complaints filed against the officer). Accordingly, no portion of the personnel or disciplinary files may be withheld pursuant to section 552.108. The task force also raises section 552.108 for "[o]pen case file logs for the period January 1, 2004 to present that are held in the CLERIS reporting system maintained by the DPS Narcotics Service" and argues that the release of this information would interfere with the detection and investigation of criminal activity. We note, however, that basic information about an arrested person, an arrest, or a crime is not excepted from disclosure under section 552.108. Gov't Code § 552.108(c). Such basic information refers to the information held to be public in Houston Chronicle Publishing Company v. City of Houston. See 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); Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Although we agree that the open case file logs relate to pending criminal investigations, we note that these documents consist entirely of basic information that is not excepted from disclosure under section 552.108(c). Consequently, no portion of this information may be withheld pursuant to section 552.108. Section 552.117(a)(2) excepts from disclosure the home address, home telephone number, social security number, and family member information of a peace officer as defined by article 2.12 of the Code of Criminal Procedure. See Gov't Code § 552.117(a)(2); Open Records Decision No. 622 (1994). Accordingly, the task force must withhold the officers' home addresses, home telephone numbers, social security numbers, and family member information under section 552.117(a)(2). In summary, to the extent the requested information contains the names and identifying information of inactive confidential informants, this information may be withheld under section 552.101 in conjunction with the common law informer's privilege. Pursuant to section 552.117(a)(2) the task force must withhold the officers' home addresses, home telephone numbers, social security numbers, and family member information. The remainder of the information must be released. 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); 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 Office of the Attorney General 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. 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, Lauren E. Kleine
c: Mr. Scott Henson
Footnotes 1. 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. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |