March 8, 2010

Mr. Richard L. Bilbie

Assistant City Attorney

City of Harlingen

P.O. Box 2207

Harlingen, Texas 78551

OR2010-03365

Dear Mr. Bilbie:

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# 372190.

The Harlingen Police Department (the "department") received a request for (1) the complete arrest, booking and incident reports of a named individual for public intoxication; (2) a copy of the booking photo for the public intoxication arrest; (3) a copy of a booking/arrest report of a named individual on a specified date; (4) and the department's policy and procedures manual. You state that you have released some of the requested information. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, 552.111, and 552.151 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note that a portion of the submitted information may have been subject to a previous request for information, in response to which this office issued Open Records Letter No. 2005-05321 (2005). In that decision, we ruled that the department may withhold portions of the department's general manual under section 552.108(b)(1) of the Government Code and release the remaining information. As we have no indication that the law, facts, or circumstances on which the prior ruling was based have changed, the department may continue to rely on that ruling as a previous determination and continue to treat any previously ruled upon information in accordance with that prior ruling. ⁽¹⁾ See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure). To the extent the submitted information was not previously ruled upon, we will consider your arguments against disclosure.

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, such as section 58.007 of the Family Code, which makes confidential juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997. The relevant language of section 58.007 reads:

(c) Except as provided by subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapters B, D, and E.

Fam. Code § 58.007(c). The report submitted as Exhibit C involves juvenile delinquent conduct that occurred after September 1, 1997. See id. § 51.03(a), (b) (defining "delinquent conduct" and "conduct indicating a need for supervision"). For purposes of section 58.007(c), a "child" is a person who is ten years of age or older and under seventeen years of age. See id. § 51.02(2). You do not indicate, nor does it appear, that any of the exceptions in section 58.007 apply to this report. Therefore, Exhibit C is confidential under section 58.007(c) of the Family Code and must be withheld in its entirety under section 552.101 of the Government Code. ⁽²⁾

Section 552.108(b)(1) of the Government Code excepts from disclosure "[a]n 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 . . . if . . . release of the internal record or notation would interfere with law enforcement or prosecution[.]" Gov't Code § 552.108(b)(1); see City of Fort Worth v. Cornyn, 86 S.W.3d 320, 327 (Tex. App.--Austin 2002, no pet.) (Gov't Code § 552.108(b)(1) protects information that, if released, would permit private citizens to anticipate weaknesses in police department, avoid detection, jeopardize officer safety, and generally undermine police efforts to effectuate state laws). The statutory predecessor to section 552.108(b)(1) protected information that would reveal law enforcement techniques, but was not applicable to generally known policies and procedures. See, e.g., Open Records Decision Nos. 531 (1989) (detailed use of force guidelines protected, but Penal Code provisions, common-law rules, and constitutional limitations on use of force not protected), 456 (1987) (information regarding location of off-duty police officers protected), 413 (1984) (sketch showing security measures to be used at next execution protected), 252 at 3 (1980) (governmental body failed to indicate why investigative procedures and techniques requested were any different from those commonly known).

You state that the release of Exhibit D, which consists of the Harlingen Police Department Policy and Procedures Manual, "would severely interfere with the department's ability to enforce the laws by revealing procedures, rules, and regulations designed for strictly internal use by the department." You further attest that release of Exhibit D would reveal internal information about police procedures that would jeopardize police safety and impact the department's abilities to protect the community. Upon review of your arguments and the information at issue, we agree that release of the information we have marked under section552.108(b)(1) would interfere with law enforcement and crime prevention. However, we find you have failed to establish how release of the remaining information in Exhibit D would interfere with law enforcement and crime prevention. Therefore, the department may withhold the information we have marked under section 552.108(b)(1) of the Government Code, but may not withhold any of the remaining information at issue on this basis.

You raise section 552.111 of the Government Code for the remaining information in Exhibit D. Section 552.111 excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." Gov't Code § 552.111. This exception encompasses the deliberative process privilege. See Open Records Decision No. 615 at 2 (1993). The purpose of section 552.111 is to protect advice, opinion, and recommendation in the decisional process and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, no writ); Open Records Decision No. 538 at 1-2 (1990). In Open Records Decision No. 615, this office re-examined the statutory predecessor to section 552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We determined that section 552.111 excepts from disclosure only those internal communications that consist of advice, recommendations, and opinions that reflect the policymaking processes of the governmental body. See ORD 615 at 5. A governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. Id.; see also City of Garland v. The Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) (section 552.111 not applicable to personnel-related communications that did not involve policymaking). A governmental body's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). Moreover, section 552.111 does not protect facts and written observations of facts and events that are severable from advice, opinions, and recommendations. See ORD 615 at 5. If factual information, however, is so inextricably intertwined with material involving advice, opinion, or recommendation as to make severance of the factual data impractical, the factual information also may be withheld under section 552.111. See Open Records Decision No. 313 at 3 (1982).

You state Exhibit D "is meant to be a communication strictly between police department management and the police officers." Having considered your arguments and the information at issue, we find that you have failed to establish that the information at issue constitutes advice, recommendations, opinions, or materials reflecting the policymaking processes of the department. We therefore conclude that the department may not withhold any of the remaining information in Exhibit D under section 552.111 of the Government Code.

Section 552.151 of the Government Code provides:

Information in the custody of a governmental body that relates to an employee or officer of the governmental body is excepted from the requirements of Section 552.021 if, under the specific circumstances pertaining to the employee or officer, disclosure of the information would subject the employee or officer to a substantial threat of physical harm.

Gov't Code § 552.151. In this instance, you argue release of the remaining information in Exhibit D could expose the employees and officers of the department to threats of physical harm. Upon our review, however, we find you have not demonstrated how release of the information at issue would subject the officers at issue to a substantial threat of physical harm. Accordingly, the department may not withhold any of the remaining information in Exhibit D under section 552.151 of the Government Code.

In summary, the department must rely on Open Records Letter No. 2005- 5321 as a previous determination and continue to treat any previously ruled upon information in accordance with that ruling. The department must withhold Exhibit C under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. The department may withhold the information we have marked in Exhibit D under section 552.108(b)(1) of the Government Code. The remaining information must be released.

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,

Jonathan Miles

Assistant Attorney General

Open Records Division

JM/cc

Ref: ID# 372190

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. As our ruling is dispositive of this information, we need not address your argument against its disclosure.

2. As our ruling is dispositive of this information, we need not address your argument against its disclosure.

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