April 19, 2010

Ms. Courtney Alvarez

City Attorney

City of Kingsville

P.O. Box 1458

Kingsville, Texas 78364

OR2010-05546

Dear Mr. Alvarez:

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# 376745.

The Kingsville Police Department (the "department") received a request for 1) an updated list of frequencies used by the City of Kingsville's (the "city") EDACS radio communication network and 2) an updated list of all current TALKGROUP IDS available on the city's EDACS radio communication network, including the DEC codes and their corresponding talkgroup description. You state the department has released information responsive to item one of the request. You claim that 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. We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released).

You have submitted information pertaining to the department's EDACS radio network. We note only the information that pertains to TALKGROUP IDS, DEC codes, or talkgroup descriptions is responsive to this request. This ruling does not address the public availability of nonresponsive information and the department is not required to release nonresponsive information in response to this request.

Section 552.108(b)(1) of the Government Code excepts from disclosure the internal records and notations of law enforcement agencies and prosecutors when their release would interfere with law enforcement and crime prevention. Open Records Decision No. 531 at 2 (1989) (quoting Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977)). To demonstrate the applicability of this exception, a governmental body must meet its burden of explaining how and why release of the requested information would interfere with law enforcement and crime prevention. Open Records Decision No. 562 at 10 (1990). This office has stated that under the statutory predecessor to section 552.108(b), a governmental body may withhold information that would reveal law enforcement techniques or procedures. See, e.g., Open Records Decision Nos. 531 (release of detailed use of force guidelines would unduly interfere with law enforcement), 456 (1987) (release of forms containing information regarding location of off-duty police officers in advance would unduly interfere with law enforcement), 413 (1984) (release of sketch showing security measures to be used at next execution would unduly interfere with law enforcement), 409 (1984) (if information regarding certain burglaries exhibit a pattern that reveals investigative techniques, information is excepted under predecessor to section 552.108), 252 (1980) (predecessor to section 552.108 is designed to protect investigative techniques and procedures used in law enforcement), 143 (1976) (disclosure of specific operations or specialized equipment directly related to investigation or detection of crime may be excepted). Generally known policies and techniques, however, may not be withheld under section 552.108. See, e.g., ORDs 531 at 2-3 (Penal Code provisions, common law rules, and constitutional limitations on use of force are not protected under section 552.108), 252 at 3 (governmental body did not meet burden because it did not indicate why investigative procedures and techniques requested were any different from those commonly known).

While the requestor claims the information at issue is widely available, you represent that this information is not generally known and the department has never published this information. You state that release of the TALKGROUP IDS with the DEC codes and their corresponding talkgroup descriptions would "enable an individual to program a radio to broadcast . . . on the same frequencies utilized by the [department]." You explain that the release of this information would interfere with law enforcement activities and pose a severe threat to officer safety. You further explain that release of this information would allow criminals to listen and possibly interfere with "inmate transfers, undercover investigations, SWAT activities and training, narcotics investigations, and search warrant executions." Based on your representations and our review, we agree that the release of the information at issue will interfere with law enforcement.

The requestor, however, also asserts that he only wants to monitor radio traffic with a legally available radio scanner and does not intend to transmit on any of the requested talkgroups or frequencies. This office has determined the Act does not permit the consideration by a governmental body or this office of a requestor's intended use of information when responding to open records requests. See Gov't Code § 552.222(a) (stating governmental body may not inquire into purpose for which information will be used); see also Open Records Decision Nos. 508 (1988) at 2 (motives of a person seeking information under the Act are irrelevant), 51 (1974). Therefore, the department may withhold this information from disclosure under section 552.108(b)(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,

Tamara Wilcox

Assistant Attorney General

Open Records Division

TW/dls

Ref: ID# 376745

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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