 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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June 27, 2007 Ms. Holly C. Lytle OR2007-08156 Dear Ms. Lytle: 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# 282331. The El Paso County Sheriff's Department (the "department") received a request for photographs of two sheriff's deputies. You claim that the requested information is excepted from disclosure under sections 552.103 and 552.119 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Section 552.103 of the Government Code` provides in relevant part as follows: (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 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). A governmental body has 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 was pending or reasonably anticipated on the date that the governmental body received the request for information, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); 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). A governmental body must meet both prongs of this test for information to be excepted under section 552.103(a). In this instance, the department indicates that the submitted photographs relate to pending litigation and states that the County of El Paso anticipates that it will become a party. We note, however, that the department is not currently a party to this litigation, nor do you assert that it will become one. See Gov't Code § 552.103(a); Open Records Decision No. 575 at 2 (1990) (stating that predecessor to section 552.103 only applies when governmental body is party to litigation). Furthermore, you have not provided this office with an affirmative representation from a governmental body with a litigation interest that seeks to withhold the information at issue pursuant to section 552.103. Accordingly, the department may not withhold the photographs at issue under section 552.103 of the Government Code. Section 552.119 of the Government Code provides: (a) A photograph that depicts a peace officer as defined by Article 2.12, Code of Criminal Procedure, the release of which would endanger the life or physical safety of the officer, is excepted from [required public disclosure] unless: (1) the officer is under indictment or charged with an offense by information; (2) the officer is a party in a civil service hearing or a case in arbitration; or (3) the photograph is introduced as evidence in a judicial proceeding. (b) A photograph excepted from disclosure under Subsection (a) may be made public only if the peace officer gives written consent to the disclosure. Gov't Code § 552.119. Under section 552.119, a governmental body must demonstrate, if the documents do not demonstrate on their face, that release of the photograph would endanger the life or physical safety of a peace officer. (1) In this instance, you submitted the petition that shows the sheriff's deputies whose photographs are at issue have been sued in their individual capacities and you state that none of the provisions in subsection (a) are applicable. You state that these sheriff's deputies continue to work for the department and patrol areas where members of the community are in disagreement with the department's role in the subject matter of the litigation. Further, the submitted petition reflects the fact that these sheriff's deputies have been patrolling in the community for some time. Because the officers regularly patrol these neighborhoods in uniform while engaging in law enforcement duties, they are easily identifiable by members of these communities where there is disagreement over certain issues. Accordingly, we determine that the department has failed to demonstrate how the release of these photographs at this time would endanger the life or physical safety of these sheriff's deputies. The submitted photographs 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, Kara A. Batey Assistant Attorney General Open Records Division KAB/mcf Ref: ID# 282331 Enc. Submitted documents c: Ms. Christina Montoya KTSM Channel 9 News 801 North Oregon El Paso, Texas 79902 (w/o enclosures) Footnotes1. You state that the sheriff's deputies are peace officers as defined by Article 2.12 of the Code of Criminal Procedure.
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