April 10, 2008

Ms. Zindia Thomas

Assistant Attorney General

Public Information Coordinator

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

OR2008-04855

Dear Ms. Thomas:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 307152.

The Office of the Attorney General (the "OAG") received a request for information pertaining to "a complaint that the Cranfills Gap School Board had violated the [O]pen [M]eetings [A]ct." The OAG asserts the information is excepted from disclosure under sections 552.107, 552.108, 552.130, and 552.137 of the Government Code. ⁽¹⁾ We have considered the OAG's claimed exceptions to disclosure and have reviewed the submitted sample of information. ⁽²⁾

Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. 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.

The OAG argues section 552.108(a)(2) is applicable because the criminal investigation conducted by the OAG's Criminal Investigations Division resulted in a conclusion other than conviction or deferred adjudication. Because the information pertains to a case that concluded in a result other than conviction or deferred adjudication, we agree the OAG may withhold the information under section 552.108(a)(2).

However, section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 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). Thus, with the exception of the basic front page offense and arrest information, the OAG may withhold the requested information from disclosure based on section 552.108(a)(2). Because section 552.108 is dispositive, we do not address the OAG's other arguments.

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,

Yen-Ha Le

Assistant Attorney General

Open Records Division

YHL/sdk

Ref: ID# 307152

Enc: Submitted documents

c: Mr. Evan Moore

Bosque County News

114 North Main

Meridian, Texas 76665

(w/o enclosures)

Footnotes

1. The OAG asserts the information is protected under section 552.101 of the Government Code in conjunction with the attorney-client privilege pursuant to Texas Rule of Evidence 503. 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. It does not encompass the discovery privilege found in rule because it is not a constitutional law, statutory law, or judicial decision. Open Records Decision No. 676 at 1-2 (2002). The OAG's reliance on In re City of Georgetown is misplaced because the court addressed the interplay between the discovery privileges and section 552.022 of the Government Code, not section 552.101. 53 S.W.2d 328 (Tex. 2001).

2. 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.

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