 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
January 11, 2010 Mr. Gary Grief Deputy Executive Director Texas Lottery Commission P.O. Box 16630 Austin, Texas 78761-6630 OR2010-00457 Dear Mr. Grief: 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# 366899. The Texas Lottery Commission (the "commission") received a request for information pertaining to gambling investigations in Nueces County or Corpus Christi. You state that you have released some of the requested information. You claim the submitted 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. Initially, we note the submitted information includes a seizure warrant signed by a magistrate. Section 552.022 of the Government Code provides for required public disclosure of "information that is also contained in a public court record," unless the information is expressly confidential under other law. Gov't Code § 552.022(a)(17). Although the commission seeks to withhold this information under section 552.108 of the Government Code, this section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See id. § 552.007; Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 177 at 3 (1977) (statutory predecessor to Gov't Code § 552.108 subject to waiver). As such, section 552.108 is not other law that makes information expressly confidential for the purposes of section 552.022(a)(17) and the information at issue may not be withheld on this basis. However, we note some of the information subject to subsection 552.022 contains bank account numbers subject to section 552.136 of the Government Code. (1) Because this section is "other law" for purposes of section 552.022, we consider its applicability to the document at issue. Section 552.136 states that "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136(b). Section 552.136(a) defines "access device" as "a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to. . . obtain money, goods, services, or another thing of value [or] initiate a transfer of funds other than a transfer originated solely by paper instrument." Id. § 552.136(a). Upon review, we conclude the bank account numbers we marked must be withheld under section 552.136. The remaining information subject to section 552.022 must be released. Section 552.108(a)(1) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). Generally, a governmental body claiming section 552.108 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). Section 552.108 may be invoked by the proper custodian of information relating to an investigation or prosecution of criminal conduct. See Open Records Decision Nos. 474 (1987), 372 (1983) (where incident involving allegedly criminal conduct is still under active investigation or prosecution, section 552.108 may be invoked by any proper custodian of information relating to incident). You have submitted an affidavit from the Tarrant County District Attorney's office objecting to the release of the submitted information because it relates to a pending criminal investigation and prosecution. Based upon this representation and our review, we determine that release of the remaining information would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g 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) (court delineates law enforcement interests that are present in active cases). We therefore conclude that section 552.108(a)(1) is applicable to the information at issue. 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. See 531 S.W.2d at 185; see also Open Records Decision No. 127 (1976) (summarizing types of information made public by Houston Chronicle). Thus, with the exception of basic information, the commission may withhold the remaining information from disclosure based on section 552.108(a)(1). In summary, the commission must withhold the bank account numbers we marked in the seizure warrant under section 552.136 of the Government Code. (2) The remaining information in the seizure warrant must be released pursuant to section 552.022(a)(17)of the Government Code. With the exception of basic information, the commission may withhold the remaining information from disclosure based on section 552.108(a)(1) of the Government Code. 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, Paige Lay Assistant Attorney General Open Records Division PL/eeg Ref: ID# 366899 Enc. Submitted documents cc: Requestor (w/o enclosures) cc: Ms. Lori L. Varnell Assistant Criminal District Attorney Tarrant County District Attorney's Office c/o Mr. Gary Grief Deputy Executive Director Texas Lottery Commission P.O. Box 16630 Austin, Texas 78761-6630 (w/o enclosures) Footnotes1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). 2. We note this office recently issued Open Records Decision No. 684 (2009), a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including bank account numbers under section 552.136 of the Government Code, without the necessity of requesting an attorney general decision.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |