 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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September 12, 2007 Mr. Anthony C. McGettrick OR2007-11947 Dear Mr. McGettrick: 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# 288980. The City of Laredo (the "city") received a request for the radio transcript of a specified incident, the names and badge numbers of the police officers involved in the specified incident, the internal affairs report pertaining to the specified incident, and the city's record retention schedule. You indicate that the city will release the internal affairs report and the record retention schedule. You claim that the remaining requested information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information. First, we address your assertion that Exhibit 4, which consists of a list of police officers' names and badge numbers, was "compiled in response to the request, and was not an existing document prior to the date 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). Likewise, a governmental body is not required to produce the responsive information in the format requested, a list, or create new information to respond to the request for information. AT&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex.1995); Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678, 681(Tex. App.--Eastland 2000, pet. denied); Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 2-3 (1986), 342 at 3 (1982), 87 (1975). In this instance, the requestor asks for the names and badge numbers of the police officers involved in the specified incident but does not request that such information be supplied as a "list" or in any other particular format. You make no assertion that the city does not maintain the requested information. Instead, you state that the city compiled Exhibit 4 in response to the request for information. Based on your statements, and the submitted information, it is clear that the city does maintain the requested names and badge numbers of police officers involved in the specified incident. Thus, while the city need not distill the requested information into the form of a list, it must nevertheless release information that it in good faith believes to be responsive to the request unless such information may or must be withheld pursuant to one of the Act's exceptions to disclosure. We turn therefore to your claim that the submitted information is excepted from disclosure under section 552.108 of the Government Code. 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: (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). Subsection 552.108(a)(1) protects information, the release of which would interfere with a particular pending criminal investigation or prosecution, while subsection 552.108(b)(1) encompasses internal law enforcement and prosecution records, the release of which would interfere with on-going law enforcement and prosecution efforts in general. Upon review, we find that you have failed to explain how release of Exhibits 3 and 4 would interfere with a particular criminal investigation. Thus, you have not established that section 552.108(a)(1) applies to Exhibits 3 and 4, and therefore, none of the requested information may be withheld under this exception. Next, this office has stated that under the statutory predecessor to section 552.108(b)(1), a governmental body may withhold information that would reveal law enforcement techniques or procedures. See, e.g., Open Records Decision Nos. 531 (1989) (release of detailed use of force guidelines would unduly interfere with law enforcement), 456 (1987) (release of forms containing information regarding location of off-duty police officers in advance would unduly interfere with law enforcement), 413 (1984) (release of sketch showing security measures to be used at next execution would unduly interfere with law enforcement), 409 (1984) (if information regarding certain burglaries exhibit a pattern that reveals investigative techniques, information is excepted under predecessor to section 552.108), 341 (1982) (release of certain information from Department of Public Safety would unduly interfere with law enforcement because release would hamper departmental efforts to detect forgeries of drivers' licenses), 252 (1980) (predecessor to section 552.108 is designed to protect investigative techniques and procedures used in law enforcement), 143 (1976) (disclosure of specific operations or specialized equipment directly related to investigation or detection of crime may be excepted). To claim this exception, a governmental body must explain how and why release of the requested information would interfere with law enforcement and crime prevention. Gov't Code §§ 552.108(b)(1), .301; Open Records Decision No. 562 at 10 (1990). Generally known policies and techniques may not be withheld under section 552.108. See, e.g., Open Records Decision Nos. 531 at 2-3 (Penal Code provisions, common law rules, and constitutional limitations on use of force are not protected under predecessor to section 552.108), 252 at 3 (governmental body did not meet burden because it did not indicate why investigative procedures and techniques requested were any different from those commonly known). You do not state how or why the release of the information in Exhibits 3 and 4 would interfere with law enforcement and crime prevention. Therefore, the city has failed to demonstrate how subsection 552.108(b)(1) is applicable to Exhibits 3 and 4. Accordingly, we conclude that the city may not withhold any of the requested information under section 552.108(b)(1). We note that Exhibit 3 contains Texas motor vehicle record information. Section 552.130 of the Government Code excepts from disclosure information that "relates to . . . a motor vehicle operator's or driver's license or permit issued by an agency of this state [or] a motor vehicle title or registration issued by an agency of this state." (1) Gov't Code § 552.130. Therefore, the city must withhold the Texas license plate number contained in Exhibit 3 under section 552.130. The remaining 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, 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, Jennifer Luttrall Assistant Attorney General Open Records Division JL/eeg Ref: ID# 288980 Enc. Submitted documents c: Mr. Roberto Adams 1709 Peidra China Laredo, Texas 78043 (w/o enclosures) Footnotes1. The Office of the Attorney General will raise a mandatory exception like section 552.130 on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).
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