|Office of the Attorney General - State of Texas
July 26, 2000
Ms. Lillian Guillen Graham
Dear Ms. Graham:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137990.
The Mesquite Police Department (the "department") received a written request for "the 911 call audio record excerpts" relating to certain incident numbers. You state that nine audio tapes are responsive to the request and that four of those, tape nos. 1, 2, 7, and 9 will be made available to the requestor. You contend that the remaining requested tape recordings are excepted from public disclosure under section 552.101 of the Government Code.
We note at the outset that the department received the initial request for the 911 tapes on May 12, 2000, but you did not request a decision from this office until June 7, 2000. Consequently, more than ten business days have elapsed between the date the department received the initial records request and the date of your request to this office for a decision in this matter. See Gov't Code § 552.301(a).
Section 552.301(a) of the Government Code requires a governmental body to release requested information or to request a decision from the attorney general within ten business days of receiving a request for information the governmental body wishes to withhold. When a governmental body fails to request a decision within ten business days of receiving a request for information, the information at issue is presumed public. Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The governmental body must show a compelling interest to withhold the information to overcome this presumption. See Hancock, 797 S.W.2d at 381.
The fact that information is made confidential by law found outside the Public Information Act constitutes a compelling demonstration that the information should be withheld from the public. See Open Records Decision No. 150 (1977). Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997, are confidential under section 58.007 of the Family Code. 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.
Four of the 911 tape recordings that you seek to withhold, nos. 3, 5, 6, and 8, pertain to instances of juvenile conduct that occurred on or after September 1, 1997, and as such those tape recordings must be withheld in their entirety pursuant to section 58.007(c) of the Family Code in conjunction with section 552.101 of the Government Code.
You seek to withhold the remaining tape recording at issue, tape no. 4, which pertains to incident report number 9071814, pursuant to the informer's privilege. The "informer's privilege" aspect of section 552.101 protects the identity of persons who report violations of the law. When information does not describe conduct that violates the law, the informer's privilege does not apply. Open Records Decision Nos. 515 (1988), 191 (1978). This office has previously addressed the public nature of the information contained tape no. 4, albeit in a different form, in a previously issued open records ruling. In Open Records Letter No. 99-2240 (1999), this office addressed whether the informer's privilege was applicable to incident report number 9071814 and concluded:
We conclude that the informer's privilege is not a compelling exception and, therefore, may not be used to withhold any of the requested information from required public disclosure under section [552.101] except for the information in incident report number 9071814. [Emphasis added.]
Because this office has previously acknowledged a compelling interest in withholding the informant's identity in incident report number 9071814, we conclude that the department may withhold tape no. 4 in its entirety pursuant to the informer's privilege in conjunction with section 552.101 of the Government Code.
To summarize, the department must withhold tape nos. 3, 5, 6, and 8 pursuant to section 58.007 of the Family Code. The department may withhold tape no. 4 pursuant to the informer's privilege.
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.
Julie Reagan Watson
Ref: ID# 137990
Encl. Submitted documents
cc: Mr. Perry Litton
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US