April 7, 2010

Mr. Thomas A. Gwosdz

City Attorney

City of Victoria

P.O.Box 1758

Victoria, Texas 77902-1758

OR2010-04853

Dear Mr. Gwosdz:

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# 376778 (Victoria ORR 2010-045).

The City of Victoria (the "city") received a request for two specified police reports. You state the city has released some of the information. You claim that the remaining information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code and privileged under rule 192.5 of the Texas Rules of Civil Procedure. ⁽¹⁾ We have considered the exceptions you claim and reviewed the submitted information.

We note the submitted information is subject to section 552.022(a)(1) of the Government Code. Section 552.022(a)(1) provides for the required public disclosure of "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). In this instance, the submitted information consists of two completed police reports, which are completed reports made of, for, or by the city. Accordingly, the submitted information must be released under section 552.022(a)(1) of the Government Code, unless it is excepted from disclosure under section 552.108 of the Government Code or 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. 551 (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 the purposes of section 552.022. As such, the city may not withhold the submitted information under section 552.103 of the Government Code. The Texas Supreme Court has held that "[t]he Texas Rules of Civil Procedure 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 the information at issue, which relates to criminal cases. Therefore, the city may not withhold the submitted information under rule 192.5 of the Texas Rules of Civil Procedure. However, because information subject to section 552.022(a)(1) may be withheld under sections 552.101 and 552.108 of the Government Code, we will consider the applicability of these exceptions to the submitted information.

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. Section 552.101 of the Government Code encompasses section 58.007 of the Family Code, which makes juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 confidential. ⁽²⁾ For purposes of section 58.007(c), "child" means a person who is ten years of age or older and under seventeen years of age. See id. § 51.02(2). The relevant language of section 58.007 reads as follows:

(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 subchapter B, D, and E.

Id. § 58.007(c). Law enforcement records relating to juvenile conduct, whether delinquent conduct or conduct indicating a need for supervision, that occurred on or after September 1, 1997, are confidential under section 58.007 of the Family Code. See id. § 51.03 (defining "delinquent conduct" and "conduct indicating a need for supervision" for purposes of title 3 of the Family Code). For purposes of section 58.007, "child" means a person who is ten years of age or older and under seventeen years of age. See id. § 51.02(2). Upon review, we find case number 2009-00044557 involves a juvenile engaged in delinquent conduct that occurred after September 1, 1997. You do not indicate, nor does it appear, that any of the exceptions in section 58.007 apply. Therefore, case number 2009-00044557 is confidential pursuant to section 58.007(c) of the Family Code and must be withheld under section 552.101 of the Government Code.

Section 552.108(a) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if: (1) 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). You state that the remaining report, case number 2009-00064677, involves potential charges of criminal trespass that have been investigated by the city police department and presented to the Victoria County District Attorney for prosecution. Based upon these representations, we conclude section 552.108(a)(1) is applicable to case number 2009-00064677. 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 note that section 552.108 is limited by section 552.108(c), which provides that basic information about an arrested person, an arrest, or a crime is not excepted from disclosure under section 552.108. Gov't Code § 552.108(c). Such basic front-page information refers to the information held to be public in Houston Chronicle, and includes, among other things, an identification and description of the complainant, a detailed description of the offense, and any property involved. See 531 S.W.2d at 186-87; Open Records Decision No. 127 (summarizing types of information considered to be basic information). The city must release basic information, even if the information does not literally appear on the front page of an offense or arrest report. Although you state you have released page one of case number 2009-00064677, we note that this page does not contain information sufficient to satisfy the requirement that basic information be released. See ORD 127. Accordingly, we determine that the city must release a sufficient portion of case number 2009-00064677 to satisfy the required release of basic information pursuant to Houston Chronicle. The city may withhold the remaining information in case number 2009-00064677 under section 552.108(a)(1) of the Government Code.

In summary, the city must withhold case number 2009-00044557 under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. The city must release basic offense and arrest information for case number 2009-00064677, even if it does not literally appear on the front page of the report. The city may withhold the remaining information in case number 2009-00064677 under section 552.108(a)(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,

Kate Hartfield

Assistant Attorney General

Open Records Division

KH/dls

Ref: ID# 376778

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. You contend that a portion of the submitted information is excepted from disclosure pursuant to section 552.101 in conjunction with the "attorney work product privilege." We therefore understand you to claim this information is privileged pursuant to rule 192.5 of the Texas Rules of Civil Procedure. However, we note that this office has concluded section 552.101 does not encompass discovery privileges. See Open Records Decision Nos. 676 at 1-2 (2002), 575 at 2 (1990).

2. The Office of the Attorney General will raise a mandatory exception 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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