April 28, 2010

Ms. Evelyn Njuguna

Assistant City Attorney

City of Houston

P.O. Box 368

Houston, Texas 77001-0368

OR2010-04927A

Dear Ms. Njuguna:

This office issued Open Records Letter No. 2010-04927 (2010) on April 8, 2010. We have examined this ruling and determined that we made an error. Where this office determines that an error was made in the decision process under sections 552.301 and 552.306, and that error resulted in an incorrect decision, we will correct the previously issued ruling. See generally Gov't Code § 552.011 (providing that Office of Attorney General may issue decision to maintain uniformity in application, operation, and interpretation of Public Information Act (the "Act"), chapter 552 of the Government Code). Consequently, this decision serves as the correct ruling and is a substitute for the decision issued on April 8, 2010.

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# 383235.

The Houston Police Department (the "department") received a request for the police report and probable cause affidavit for the arrest of a named person on February 4, 2010 for murder. The department claims the information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception the department claims and reviewed the submitted information. We have also received and considered the requestor's comments. See Gov't Code § 552.304 (interested party may submit written comments regarding availability of requested information).

First, the requestor argues the department failed to comply with section 552.301(d) of the Government Code in seeking an open records decision from this office. Section 552.301(d) requires a governmental body that requests an attorney general decision to provide to the requestor within ten business days after receipt of the request for information a written statement and a copy of the governmental body's written communication to the attorney general asking to withhold the information and for an attorney general decision. Id. § 552.301(d). The department states it received the request for information on March 10, 2010. Thus, the deadline for sending the required information to the requestor was March 24, 2010. However, the requestor submitted the department's envelope showing the department postmarked it on March 25, 2010. Therefore, the department's letter to the requestor was untimely. See id. § 552.308 (document is timely if sent by first class United States mail and bears post office cancellation mark indicating time within required period). A governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. Id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 319 (1982). The presumption that information is public under section 552.302 can be overcome by demonstrating third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). The need of a governmental body, other than the agency seeking an open records decision, to withhold information under section 552.108 of the Government Code can provide a compelling reason to withhold information from disclosure. Open Records Decision No. 586 (1991). Because the department informs us the Harris County District Attorney's Office (the "district attorney") objects to release of the requested information, we will consider the district attorney's claim.

Section 552.108(a)(1) 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). A governmental body claiming section 552.108 must reasonably explain how and why 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). The district attorney states the information relates to a pending criminal case and release of the information at this time will negatively affect its ability to successfully prosecute this case. Based on this representation, we conclude release of the 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., 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases).

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 Open Records Decision No. 127 (1976) (summarizing types of information made public by Houston Chronicle). Thus, with the exception basic front-page offense and arrest information, the department may withhold the information under 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,

Yen-Ha Le

Assistant Attorney General

Open Records Division

YHL/dls

Ref: ID# 383235

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. Martin Kellogg

P.O. Box 381855

Duncanville, Texas 75138

(w/o enclosures)

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