|Office of the Attorney General - State of Texas
February 23, 2000
Mr. Boyd Kennedy
Dear Mr. Kennedy:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 132468.
The Texas Parks and Wildlife Department (the "department") received a request for several categories of information concerning a named game warden. You state that you have released some of the information to the requestor. You claim that the remaining categories of information are excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted representative samples of information.(1)
Section 552.103 excepts from disclosure information "relating to litigation of a civil or criminal nature, to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party." Gov't Code § 552.103. You contend that the requested information relates to a pending criminal prosecution. However, the department is not a party in this litigation. A governmental body may assert the litigation exception for information that a district attorney determines relates to a pending criminal case and should not be released. Open Records Decision No. 469 (1987). However, here, you have not indicated or submitted a letter from the prosecuting attorney stating that he or she wants to withhold the requested information under section 552.103. We therefore conclude that you have not shown how section 552.103 of the Government Code excepts the requested information from disclosure. Thus, the requested information may not be withheld from public disclosure under section 552.103.
We note, however, that some of the submitted information is confidential by law. We conclude that Exhibit C is excepted from disclosure under section 552.101 of the Government Code(2) in conjunction with section 58.007 of the Family Code. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. The relevant language of section 58.007(c) reads as follows:
(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:
(1) if maintained on paper or microfilm, kept separate from adult files and records;
(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and
(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.
The information in Exhibit C involves juvenile conduct that occurred after September 1, 1997. It does not appear that any of the exceptions in section 58.007 apply; therefore the offense report is confidential pursuant to section 58.007(c) of the Family Code. You must withhold this offense report in its entirety from disclosure under section 552.101 of the Government Code.
Additionally, section 552.117 of the Government Code provides that information may be withheld if it is:
information that relates to the home address, home telephone number, or social security number, or that reveals whether the following person has family members:
. . .
(2) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or a security officer commissioned under Section 51.212, Education Code, regardless of whether the officer complies with Section 552.124;
A game warden is a peace officer as defined by Article 2.12 of the Code of Criminal Procedure. The information contains the named game warden's social security number. Therefore, pursuant to section 552.117(2) of the Government Code this information is excepted from public disclosure. We have marked the information that you must withhold. Thus, we conclude that, except as noted above, the requested information must be released in its entirety.
This letter ruling is limited to the particular records 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 records or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).
If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).
If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).
If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.
Noelle C. Letteri
Ref: ID# 132468
Encl. Submitted documents
cc: Mr. W. Weiss
1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision No. 499 (1988), 497 (1988). Here, we do not address any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
2. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."
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