March 28, 2011

Ms. Sylvia McClellan

Assistant City Attorney

Criminal Law and Police Section

City of Dallas

1400 South Lamar

Dallas, Texas 75215

OR2011-04190

Dear Ms. McClellan:

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# 412525 (DPD# 2011-0197).

The Dallas Police Department (the "department") received two requests from the same requestor for information pertaining to two incidents. You claim 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.

Initially, we must address the department's responsibilities under the Act. Section 552.301 of the Government Code prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(b) of the Government Code, a governmental body must ask for the attorney general's decision and state the exceptions that apply within ten business days after receiving a request. See Gov't Code § 552.301(b). You state the requests for information were received on January 3, 2011. However, we note the first request is dated January 4, 2011, and has a received time stamp of the same date. The second request is dated January 5, 2011. You state the department was closed on January 17, 2011. Thus, with respect to the first request, the department was required to seek a ruling from this office on or before January 19, 2011. With respect to the second request, the department was required to seek a ruling on or before January 20, 2011. The department submitted its request for a ruling from our office for both requests on January 20, 2011. Therefore, we find the department failed to comply with the requirements of section 552.301(b) of the Government Code with respect to the first request.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See id. § 552.302; Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (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. 630 (1994). A compelling reason exists when third-party interests are at stake or when information is confidential under other law. Open Records Decision No. 150 (1977). Section 552.108 of the Government Code is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Gov't Code § 552.007; Open Records Decision Nos. 663 at 5 (1999) (untimely request for decision resulted in waiver of discretionary exceptions), 177 (1977) (statutory predecessor to section 552.108 subject to waiver). Because the department failed to comply with the requirements of the Act with respect to the first request, it has waived its claimed exception under section 552.108 of the Government Code with respect to that information. Accordingly, the department may not withhold information responsive to the first request on that basis. As you raise no other exceptions to disclosure, the information responsive to the first request must be released.

Section 552.108(a)(1) of the Government Code 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 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 information responsive to the second request relates to a pending criminal case and release of the information would interfere with the detection, investigation, and prosecution of a crime. Based on this representation and our review, we conclude that section 552.108(a)(1) is applicable to the information that is responsive to the second request. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975) (court delineates law enforcement interests that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976).

However, as you acknowledge, 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, and includes, but is not limited to, the identification of any arrested person, the details of the arrest, the vehicles involved, and a detailed description of the offense. See Open Records Decision No. 127 (1976) (summarizing types of information deemed public by Houston Chronicle).

In summary, with the exception of basic information, the department may withhold the information responsive to the second request under section 552.108(a)(1) of the Government Code. ⁽¹⁾ The information responsive to the first request 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,

Lauren E. Kleine

Assistant Attorney General

Open Records Division

LEK/dls

Ref: ID# 412525

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note basic information includes an arrestee's social security number. Section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act.

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