March 29, 2010

Ms. Jameene Yvonne Banks

Denton, Navarro, Rocha & Bernal

2517 North Main Avenue

San Antonio, Texas 78212

OR2010-04353

Dear Ms. Banks:

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# 374288.

The City of Garden Ridge (the "city"), which you represent, received a request for information pertaining to (1) a specified traffic stop, (2) the use of radar guns, and (3) a handheld device used to scan vehicle registration stickers. You assert the requested information is not subject to the Act. You also claim the submitted information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we address your assertion that the requested information is not subject to the Act. The Act is applicable to "public information." See Gov't Code § 552.021. Section 552.002 of the Act provides that "public information" consists of "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." Id. § 552.002(a). Thus, virtually all information that is in a governmental body's physical possession constitutes public information that is subject to the Act. Id. § 552.002(a)(1); see also Open Records Decision Nos. 549 at 4 (1990), 514 at 1-2 (1988). In this instance, you do not present any arguments supporting your assertion that the requested information is not public information. Furthermore, the request reflects that any responsive information would be collected and maintained by the city in connection with the transaction of official business of the city and, thus, would be public information as defined by section 552.002. See Gov't Code § 552.002(a). Therefore, the requested information is subject to the Act and may only be withheld if it is excepted from disclosure under the Act.

Next, we note the city did not submit information responsive to the portion of the request seeking information pertaining to a handheld device used to scan vehicle registration stickers. To the extent any information responsive to this portion of the request existed on the date the city received the request, we assume the city has released it. If the city has not released any such information, it must do so at this time. See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible).

Next, we note a portion of the submitted information is subject to section 552.022 of the Government Code, which provides in pertinent 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:

(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 contains a completed "Citation Details" report. Pursuant to section 552.022(a)(1) of the Government Code, a completed report is expressly public unless it is either excepted under 552.108 of the Government Code or is expressly confidential under other law. Section 552.103 of the Government Code is a discretionary exception that protects a governmental body's interest and may be waived. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.-- Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision No. 552 (1990) (statutory predecessor to section 552.103 serves only to protect governmental body's position in litigation and does not itself make information confidential); see also Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). As such, section 552.103 is not other law that makes information confidential for purposes of section 552.022. Consequently, the completed report may not be withheld under section 552.103 of the Government Code. However, because information subject to section 552.022(a)(1) may be withheld under section 552.108, we will consider your arguments under this exception for the information subject to section 552.022(a)(1), as well as for the remaining information.

Section 552.108 of the Government Code provides in pertinent part:

(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:

. . .

(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;

(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 the requirements of Section 552.021 if:

. . .

(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication; or

Gov't Code § 552.108(a)(2), (b)(2). A governmental body claiming subsection 552.108(a)(2) or subsection 552.108(b)(2) must demonstrate the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You raise subsections 552.108(a)(2) and (b)(2) for the submitted information. You state that the information at issue "relates to a criminal matter that did not result in a conviction or a deferred adjudication." However, you also state that "[t]he prosecution into the criminal offense [at issue] is still pending and has not been resolved." Because you have provided this office with conflicting representations, we find that you have failed to demonstrate the applicability of section 552.108(a)(2) or section 552.108(b)(2) to the submitted information, and it may not be withheld on these bases. See id. § 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies). As you raise no further exceptions to disclosure of the information subject to section 552.022(a)(1) of the Government Code, that information must be released to the requestor.

We will now address your argument under section 552.103 of the Government Code for the information not subject to section 552.022(a)(1). Section 552.103 of the Government Code provides in part:

(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 state or a political subdivision, as a consequence 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.

Id. § 552.103(a), (c). The city 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 is pending or reasonably anticipated on the date the department 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). The city must meet both prongs of this test for information to be excepted under section 552.103(a).

You state, and provide documentation showing, that the information at issue is related to a pending criminal prosecution before the Garden Ridge Municipal Court. Based on your representations and our review of the submitted information, we conclude that litigation was pending when the city received the present request. We also agree that the information at issue is related to the litigation for purposes of section 552.103. Therefore, we conclude section 552.103 is generally applicable to the remaining information.

We note, however, the defendant in the criminal case at issue has already seen or had access to the submitted citation. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties seeking information relating to the litigation to obtain such information through discovery procedures. See ORD 551 at 4-5. Thus, when the opposing party has seen or had access to information relating to pending litigation, there is no interest in withholding that information from public disclosure under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). Consequently, the submitted citation, which we have marked, may not be withheld under section 552.103. Therefore, with the exception of the submitted citation, the department may withhold the remaining information under section 552.103 of the Government Code. We further note that the applicability of section 552.103 ends once the related litigation concludes. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

In summary, (1) the city must release the information we have marked pursuant to section 552.022(a)(1) of the Government Code; and (2) with the exception of the submitted citation, which must be released, the city may withhold the remaining information under section 552.103 of the Government Code. ⁽¹⁾

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free, at (888) 672-6787.

Sincerely,

Christopher D. Sterner

Assistant Attorney General

Open Records Division

CDSA/eeg

Ref: ID# 374288

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note that the information being released contains confidential information to which the requestor has a right of access. See Gov't Code § 552.023(a); ORD 481 at 4. Therefore, if the city receives another request for this particular information from a different requestor, then the city must again seek a decision from this office.

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