April 9, 2010

Mr. Joe Gorfida, Jr.

Nichols, Jackson, Dillard, Hager & Smith, L.L.P.

1800 Lincoln Plaza

500 North Akard

Dallas, Texas 75201

OR2010-05037

Dear Mr. Gorfida:

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# 375350.

The City of Sachse (the "city"), which you represent, received a request for information relating to a specified offense. You state that some of the responsive information has been provided to the requestor. You 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.

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 that claims an exception to disclosure under section 552.108 must reasonably explain how and why this exception is applicable to the information at issue. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). We note that the information at issue includes a Miranda warning that was provided to the individual who was arrested. Because this document, which we have marked, has been provided to the arrested individual, we find that its release will not interfere with the detection, investigation, or prosecution of crime. You state that the remaining information at issue pertains to a pending criminal investigation. Based on your representation and our review, we conclude section 552.108(a)(1) is applicable to this information. 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). Therefore, with the exception of the information we have marked that was provided to the arrested individual, the city may withhold the submitted information under section 552.108(a)(1) of the Government Code. As you also raise section 552.103 of the Government Code, we will address whether this exception is applicable to the remaining information.

Section 552.103 of the Government Code provides in pertinent part as follows:

(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.

Gov't Code § 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 the remaining information is part of a case file that the city's police department intends to file or has filed with the Dallas County District Attorney's Office. You have not demonstrated, however, that the city would be a party to any anticipated or pending litigation. See Gov't Code § 552.103(a); Open Records Decision No. 575 at 2 (1990) (stating that predecessor to section 552.103 only applies when governmental body is party to litigation). Further, as noted above, the requestor has seen or had access to this information. See Open Records Decision Nos. 349 (1982) (if opposing party has seen or had access to information relating to litigation, through discovery or otherwise, then there is no interest in withholding such information from public disclosure under section 552.103), 320 (1982). Consequently, we find that you have not demonstrated that section 552.103 is applicable to the remaining information, and it may not be withheld on that basis.

In summary, with the exception of the information we have marked, the city may withhold the submitted information under section 552.108(a)(1) of the Government Code. The marked 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,

Pamela Wissemann

Assistant Attorney General

Open Records Division

PFW/cc

Ref: ID# 375350

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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