April 4, 2012

Ms. Donna L. Clarke

Assistant Criminal District Attorney

Lubbock County Criminal District Attorney's Office

P.O. Box 10536

Lubbock, Texas 79408-3536

OR2012-04895

Dear Ms. Clarke:

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# 450086.

The Lubbock County Medical Examiner (the "medical examiner") received a request for two specified autopsy reports. You claim the requested 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.

Section 552.108(a)(1) of the Government Code excepts from disclosure information 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). Generally, 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), 552.301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). Section 552.108 may be invoked by the proper custodian of information relating to an investigation or prosecution of criminal conduct. See Open Records Decision No. 474 at 4-5 (1987). Where a non-law-enforcement agency possesses information relating to a pending case of a law enforcement agency, the non-law-enforcement agency may withhold the information under section 552.108(a)(1) if it demonstrates the information relates to the pending case and this office is provided with a representation from the law enforcement entity that the law enforcement entity wishes to withhold the information. You state autopsy report FAL05-0714 relates to an ongoing criminal case, and the Lubbock County District Attorney's Office (the "district attorney"), objects to its release. You state this autopsy report relates to a case that has gone to trial and a conviction was obtained, but the case is currently on appeal. Based on your representations and our review of the submitted documents, we conclude the release of autopsy report FAL05-0714 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). Thus, the medical examiner may withhold autopsy report FAL05-0714 on behalf of the district attorney's office under section 552.108(a)(1) of the Government Code.

You claim the remaining autopsy report, autopsy report FAL06-0630, is excepted from disclosure under section 552.108(a)(2) of the Government Code. Section 552.108(a)(2) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.]" Gov't Code § 552.108(a)(2). Section 552.108(a)(2) is applicable only if the information at issue relates to a concluded criminal case that did not result in a conviction or a deferred adjudication. 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 that the governmental body seeks to withhold. See id. § 552.301(e)(1)(A). Section 552.108 may be invoked by any proper custodian of information that relates to the incident. See Open Records Decision Nos. 474, 372 (1983). Where a non-law enforcement agency is in the custody of information relating to a concluded criminal case of a law enforcement agency, the custodian of the records may withhold the information if it provides this office with a demonstration that the information relates to the criminal case that has reached a conclusion other than a conviction or deferred adjudication and a representation from the law enforcement entity that it wishes to withhold the information.

On behalf of the district attorney's office, you state the district attorney's office seeks to withhold autopsy report FAL06-0630 because it pertains to a concluded criminal investigation that did not result in conviction or deferred adjudication. Accordingly, we find section 552.108(a)(2) is applicable to this autopsy report. Thus, we find the medical examiner may withhold autopsy report FAL06-0630 on behalf of the district attorney's office under section 552.108(a)(2) of the Government Code.

In summary, the medical examiner may withhold autopsy report FAL05-0714 under section 552.108(a)(1) of the Government Code on behalf of the district attorney's office. The medical examiner may withhold autopsy report FAL06-0630 under section 552.108(a)(2) of the Government Code on behalf of the district attorney's office.

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/ag

Ref: ID# 450086

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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