January 13, 2012

Ms. Leticia Mendiola

Crime Records Office

City of McAllen

P.O. Box 220

McAllen, Texas 78501

OR2012-00704

Dear Ms. Mendiola:

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# 442352.

The McAllen Police Department (the "department") received a request for incident report numbers 2011-054898 and 2011-083789. We understand the department has released some of the requested information. 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.

You raise section 552.108 of the Government Code for the submitted reports. Section 552.108 provides in pertinent part:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [required public disclosure] if:

(1) release of the information would interfere with the detection, investigation, or prosecution of crime; [or]

(2) it is information that the deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication;

. . .

(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from [required public disclosure] if:

(1) release of the internal record or notation would interfere with law enforcement or prosecution[.]

Gov't Code § 552.108(a)(1)-(2), (b)(1). Generally speaking, subsections 552.108(a)(1) and 552.108(b)(1) are mutually exclusive of section 552.108(a)(2). Subsection 552.108(a)(1) protects information, the release of which would interfere with a particular pending criminal investigation or prosecution, while subsection 552.108(b)(1) encompasses internal law enforcement and prosecution records, the release of which would interfere with law enforcement and prosecution efforts in general. In contrast, section 552.108(a)(2) protects information that relates to a concluded criminal investigation or prosecution that did not result in a conviction or deferred adjudication. A governmental body that claims an exception to disclosure under section 552.108 must reasonably explain how and why the exception it claims is applicable to the information the governmental body seeks to withhold. See id. § 552.301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).

In this instance, you cite to subsections 552.108(a)(1) and 552.108(b)(1) and argue incident report numbers 2011-054898 and 2011-083789 relate to ongoing criminal investigations. However, in response to a previous request for the same information, you raised section 552.108(a)(2) for incident report number 2011-083789 and informed this office incident report number 2011-083789 pertained to a closed investigation that was exceptionally cleared and did not result in conviction or deferred adjudication. In response to your prior request for a ruling, this office issued Open Records Letter No. 2011-14456 (2011), which stated with the exception of basic information, the department may withhold incident report number 2011-083789 under section 552.108(a)(2). In raising subsections 552.108(a)(1) and 552.108(b)(1), you have provided no additional arguments explaining how the information you previously described as relating to a closed case, now relates to an ongoing criminal investigation. Because of these contradictory representations, we find you have failed to sufficiently demonstrate the applicability of section 552.108(a)(1) to incident report number 2011-083789. See Gov't Code § 552.301(e)(1)(A) (governmental body must provide comments explaining why claimed exceptions to disclosure apply). Consequently, the department may not withhold incident report number 2011-083789 under section 552.108. Because you state incident report number 2011-054898 relates to an ongoing criminal investigation, we conclude that release of incident report number 2011-054898 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) (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, we note 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 information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 186-88; Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Thus, with the exception of basic information, which we understand has been released, the department may withhold incident report number 2011-054898 pursuant to section 552.108(a)(1).

In summary, except for basic information, the department may withhold incident report number 2011-054898 under section 552.108(a)(1). Incident report number 2011-083789 must be released. ⁽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,

Ana Carolina Vieira

Assistant Attorney General

Open Records Division

ACV/agn

Ref: ID# 442352

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note the requestor has a special right of access under section 552.023 of the Government Code to some of the information being released in this instance. See Gov't Code § 552.023(b) (governmental body may not deny access to person to whom information relates or person's agent on ground that information is considered confidential by privacy principles); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individuals request information concerning themselves). Therefore, if the department receives another request for this information from a different requestor, the department must again seek a ruling from this office.

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