Ken Paxton

Tips for governmental bodies requesting and using 552.108(a)(1) Previous Determinations

    • Ruling request required. The governmental body may only request the 552.108(a)(1) Previous Determination (“108 PD”) when seeking a ruling from this office in response to an actual open records request.
  • Request with the type of file to which you seek to apply the 108 PD. The governmental body should request the 108 PD in conjunction with the kind of file to which the governmental body will apply the 108 PD;
    • For example, the governmental body should request the 108 PD in relation to a file that 1) pertains to law enforcement records related to an open criminal case; 2) the release of the information would interfere with the detection, investigation, or prosecution of crime; 3) portions of the basic information are not confidential (e.g., the name of a sexual assault victim who is also a complainant); and 4) the information is not otherwise confidential in its entirety pursuant to other statutes (e.g., juvenile records subject to section 58.007 of the Family Code, or child abuse records subject to section 261.201 of the Family Code.)
    • NOTE: If the governmental body requests a 108 PD in conjunction with a file to which it has applied section 552.108(a)(1) of the Government Code incorrectly, the Office of the Attorney General will not grant the governmental body a 108 PD.
    • Comply with specific requirements of the 108 PD. If granted a 108 PD, ensure you completely comply with the procedural requirements provided in the previous determination letter the Office of the Attorney General provides you in response to the ruling.
    • Provide the requestor with a completed copy of the required notice form. When relying on a 108 PD, failure to provide a requestor with the specified notice means you have not met all of the specified circumstances and the 108 PD is inapplicable, which may result in a procedural violation and the presumption the information is public.
    • Have procedures in place. Ensure you have procedures in place to accurately determine which records the 108 PD applies to, as well as additional procedures to ensure the release of any information, including at least basic information, which must be released within five business days from the request.
      • NOTE: Misapplication of the 108 PD may result in the presumption the information at issue is public. Misuse of the 108 PD may result in this office revoking the 108 PD from the governmental body.
    • The use of the previous determination is not mandatory. Even if a governmental body has been granted a previous determination of this type, the governmental body may still request an open records decision from the Office of the Attorney General on any records. If you have any doubt about the application of the 108 PD to the request at issue, you should request a decision from the Office of the Attorney General.
    • Provide us with a copy of the required notice form in subsequent requests. If you have to request a ruling from this office in response to a subsequent request for information from the same requestor, include the notice you sent the requestor in response to the initial request.
  • Assistance is available. If you have questions about the use of the 108 PD, you may call the Open Government Hotline toll free at (877) 673-6839 (877-OPENTEX).