April 9, 2012

Ms. Laura Garza Jiminez

County Attorney

Office of the Nueces County Attorney

901 Leopard, Room 207

Corpus Christi, Texas 78401-3680

OR2012-05009

Dear Ms. Jiminez:

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# 450770.

The Nueces County Sheriff's Office (the "sheriff's office") received a request for video and audio recordings of a specified incident. You state the sheriff's office does not possess an audio recording of the specified incident. ⁽¹⁾ You claim that the submitted information is excepted from disclosure under sections 552.101, 552.103, and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also received and considered comments submitted by the requestor. See Gov't Code § 552.304 (providing that interested party may submit written comments regarding why information should or should not be released).

Initially, we understand the requestor to contend that his request was not a request under the Act, but was a request for discovery. Section 552.0055 of the Government Code provides that "[a] subpoena duces tecum or a request for discovery that is issued in compliance with a statute or a rule of civil or criminal procedure is not considered to be a request for information under this chapter." Id. § 552.0055. This section does not apply in all instances in which a governmental body could have received such a subpoena or discovery request. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999) (in interpreting statutes, goal of discerning legislature's intent is served by beginning with statute's plain language because it is assumed that legislature tried to say what it meant and its words are therefore surest guide to its intent); see also City of Fort Worth v. Cornyn, 86 S.W.3d 320, 324 (Tex. App.--Austin 2002, no pet.) ("In applying the plain and common meaning of a statute, [one] may not by implication enlarge the meaning of any word in the statute beyond its ordinary meaning, especially when [one] can discern the legislative intent from a reasonable interpretation of the statute as it is written." (citing Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex.1994))).

The requestor does not assert that the request is in fact a "subpoena duces tecum or a request for discovery that is issued in compliance with a statute or a rule of civil or criminal procedure." See Gov't Code § 552.0055. Nothing in the request reflects that it meets the elements of a subpoena duces tecum. See Code Crim. Proc. arts. 24.02 (defining subpoena duces tecum), .03 (describing procedures for obtaining subpoenas, including subpoena duces tecum). Furthermore, the request does not indicate that the information was otherwise requested pursuant to the authority of a statute or a rule of civil or criminal procedure. Therefore, we find the sheriff's office received a request for information under the Act, and we will address whether the sheriff's office is required to release the information at issue pursuant to the Act.

Section 552.108(a) 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: (1) 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(a)(1) must reasonably explain how and why release of the requested information would interfere with the detection, investigation, or prosecution of crime. 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 the submitted video recording relates to a criminal case that is pending investigation and prosecution. Based upon your representation and our review, we conclude that release of the submitted information 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, we conclude the sheriff's office may withhold the submitted video recording under section 552.108(a)(1) of the Government Code. As our ruling is dispositive, we need not address your remaining arguments against its disclosure.

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,

Lindsay E. Hale

Assistant Attorney General

Open Records Division

LEH/ag

Ref: ID# 450770

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Act does not require a governmental body to release information that did not exist when it received a request or to create responsive information. See Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).

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