 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 20, 2007 Mr. Michael A. Bucek OR2007-16844 Dear Mr. Bucek: 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# 297838. The City of Corinth (the "city") received two requests for the internal investigation file pertaining to a specified incident. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.107, 552.108, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also received and considered comments submitted by the requestors. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released). Initially, we note that the submitted information is subject to required public disclosure under section 552.022 of the Government Code, which provides in relevant part: (a) 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: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.] Gov't Code § 552.022(a)(1). The submitted information consists of a completed investigation. Therefore, as prescribed by section 552.022, the city must release this information unless it is confidential under other law. The city raises sections 552.103, 552.107, and 552.111 of the Government Code for the completed investigation. Sections 552.103, 552.107, and 552.111 are discretionary exceptions to disclosure that protect the governmental body's interests and may be waived. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas1999, no pet.) (governmental body may waive section 552.103 ); see also Open Records Decision Nos. 677 at 10 (2002) (attorney work product privilege under section 552.111 may be waived), 676 at 10-11 (2002) (attorney-client privilege under section 552.107(1) may be waived), 665 at 2 n.5 (discretionary exceptions generally). As such, sections 552.103, 552.107, and 552.111 are not other law that makes information confidential for the purposes of section 552.022. Therefore, the city may not withhold the submitted information under section 552.103, 552.107, or 552.111. The attorney-client privilege is also found in Texas Rule of Evidence 503, and the attorney work product privilege is also found in rule 192.5 of the Texas Rules of Civil Procedure. 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." In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). However, the Texas Rules of Civil Procedure apply only to "actions of a civil nature." Tex. R. Civ. P. 2. Accordingly, the attorney work product privilege found in rule 192.5 of the Texas Rules of Civil Procedure does not apply to any of the information at issue, which relates to a criminal investigation. Therefore, the city may not withhold any of the information at issue under rule 192.5, but we will consider your claims under sections 552.101 and 552.108 of the Government Code and under rule 503. As your claim under section 552.108 of the Government Code is potentially the broadest, we will address this exception first. Section 552.108(a) of the Government Code provides 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 the requirements of Section 552.021 if:
(1) release of the information would interfere with the detection, investigation or prosecution of crime; [or]
(2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.] Gov't Code § 552.108(a)(1)-(2). Generally speaking, subsections 552.108(a)(1) and 552.108(a)(2) apply to two mutually exclusive types of information held by a law enforcement agency. Section 552.108(a)(1) protects information that pertains to a pending criminal investigation or prosecution. In contrast, section 552.108(a)(2) protects records that pertain to a concluded criminal investigation or prosecution that did not result in a conviction or a deferred adjudication. A governmental body claiming section 552.108(a)(1) must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). A governmental body that claims 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. See Gov't Code §§ 552.108(a)(2), .301(e)(1)(A). Section 552.108 is generally not applicable to the records of an internal affairs investigation that is purely administrative in nature. See City of Fort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.--Austin 2002, no pet.), Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. Civ. App.--El Paso 1992, writ denied) (statutory predecessor to section 552.108 not applicable to internal investigation that did not result in criminal investigation or prosecution). The submitted information consists of an internal investigation that resulted in a criminal investigation of the city's police department officers by the Texas Rangers. You state that the "statute of limitations has not run on the criminal conduct/wrongdoing alleged by the Complainant" and thus the submitted information relates to a pending criminal investigation. Thus, we understand you to raise section 552.108(a)(1) of the Government Code. However, the submitted information includes a letter from the Texas Rangers that reflects that their criminal investigation into the matter has concluded. You have not provided any indication that the Texas Rangers want to withhold the submitted information for their own law enforcement purpose. Additionally, you have not established that the internal investigation at issue pertains to an otherwise ongoing criminal investigation or prosecution by the city's police department, nor have you explained how its release would interfere with the detection, investigation, or prosecution of crime. See Gov't Code § 552.108(a)(1). Thus, you have not met your burden and the submitted information may not be withheld under section 552.108. Texas Rule of Evidence 503 encompasses the attorney-client privilege and provides in part: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer's representative;
(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (E) among lawyers and their representatives representing the same client. Tex. R. Evid. 503(b)(1). A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Id. 503(a)(5). Thus, in order to withhold attorney-client privileged information from disclosure under rule 503, a governmental body must: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the information is privileged and confidential under rule 503, provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-- Houston [14th Dist.] 1993, no writ). You assert that some of the submitted information consists of confidential attorney-client communications. We understand that the communications were made in furtherance of rendering professional legal services to the city and that confidentiality of these communications has been maintained. Upon review, we have marked the information that the city may withhold on the basis of the attorney-client privilege under Texas Rule of Evidence 503. However, no part of the remaining information may be withheld on this basis. Section 552.101 of the Government Code 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 information protected by other statutes, including confidentiality provisions such as those found in chapter 55 of the Code of Criminal Procedure. Articles 55.01 through 55.05 of the Code of Criminal Procedure provide for the expunction of criminal records in certain limited circumstances. Article 55.03 prescribes the effect of an expunction order and provides: When the order of expunction is final:
(1) the release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited; (2) except as provided in Subdivision (3) of this article, the person arrested may deny the occurrence of the arrest and the existence of the expunction order; and
(3) the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged. Crim. Proc. Code art. 55.03. Article 55.04 imposes sanctions for violations of an expunction order and provides in relevant part: Sec. 1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state… and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files. Id. art. 55.04, § 1. This office has previously determined that the expunction statute prevails over the Act. See Open Records Decision No. 457 at 2 (1987) (governmental body prohibited from releasing or disseminating arrest records subject to expunction order, as "those records are not subject to public disclosure under the [Act]"). You state, and provide documentation showing, that a portion of the submitted information at issue was expunged by the Denton County District Court. Based upon your representations and our review, we find that a portion of the submitted information, which we have marked, pertains to expunged records that are confidential under article 55.03 of the Code of Criminal Procedure. Accordingly, the police report we have marked must be withheld under section 552.101 of the Government Code. Section 552.101 also encompasses the doctrine of common-law privacy, which protects information if: (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. To demonstrate the applicability of common-law privacy, both prongs of this test must be demonstrated. Id. at 681-82. Although portions of the submitted information could be considered highly intimate or embarrassing, we find that the information at issue is of legitimate public interest in this instance. Therefore, the submitted information is not confidential under common-law privacy, and the city may not withhold any of it under section 552.101 of the Government Code on that basis. We note that some of the remaining submitted information may be subject to section 552.137 of the Government Code. (1) Section 552.137 excepts from disclosure "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body" unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c). See Gov't Code § 552.137(a)-(c). Section 552.137 does not apply to a government employee's work e-mail address because such an address is not that of the employee as a "member of the public," but is instead the address of the individual as a government employee. The e-mail address at issue does not appear to be of a type specifically excluded by section 552.137(c). Therefore, unless the individual whose e-mail address is at issue consented to release of their e-mail address, the city must withhold the information we have marked under section 552.137 of the Government Code. We note, however, that the e-mail address at issue belongs to one of the requestors. The city must release this requestor's e-mail address to her pursuant to section 552.023 of the Government Code. See id. § 552.023 (person has special right of access to information held by governmental body that relates to person and that is protected from public disclosure by laws intended to protect person's privacy interests). In summary, the city may withhold the information we have marked pursuant to rule 503 of Texas Rules of Evidence. The city must withhold the information we have marked pursuant to article 55.03 of the Code of Criminal Procedure. The city must also withhold the information we have marked pursuant to section 552.137 of the Government Code. However, the city must release this e-mail to one of the requestors whose information is at issue. The remaining 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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, Jessica J. Maloney Assistant Attorney General Open Records Division JJM/jh Ref: ID# 297838 Enc. Submitted documents c: Mr. Ron Palmer P.O. Box 1509 Lake Dallas, Texas 75065-1509 (w/o enclosures) Ms. Sherry Schneider P.O. Box 1274 Lake Dallas, Texas 75065 (w/o enclosures) Footnotes1. The Office of the Attorney General will raise a mandatory exception like section 552.137 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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