|Office of the Attorney General - State of Texas
October 3, 2000
Ms. Elaine S. Hengen
Dear Ms. Hengen:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 139932.
The City of El Paso Police Department (the "department") received a request for policies, procedures, and rules that are currently in effect and that were in effect on April 20, 1980, concerning protective custody in cases of suicide attempts and threats of physical violence against police officers. You state that portions of the current policy manual have already been released to the requestor. However, you inform us that the department has withheld certain portions of the manual pertaining to, among other things, use of force and suicide attempts in accordance with a prior ruling on this information. Open Records Letter Nos. 99-2173 (1999), 2000-0491 (2000). You claim that the requested information is excepted from disclosure under section 552.108(b)(1) of the Government Code. We have considered the exception you claim and reviewed the submitted information.
Section 552.108(b)(1) of the Government Code excepts from public disclosure "[a]n internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution" if "release of the internal record or notation would interfere with law enforcement or prosecution." Gov't Code § 552.108. When section 552.108(b) is claimed, the agency claiming it must reasonably explain, if the information does not supply the explanation on its face, how releasing the information would interfere with law enforcement. Open Records Decision No. 434 at 3 (1986). We have previously held that portions of police procedures are excepted under section 552.108(b)(1) because release of the procedures would impair an officer's ability to enforce the law and would place individuals at an advantage in confrontations with the police. See Open Records Decision No. 531 (1989). However, portions of the procedures that relate to generally known common law rules, constitutional limitations, or Penal Code provisions are deemed public information. Id. at 3.
With respect to the current policies, procedures, and rules concerning suicide attempts and threats of violence against police officers, you argue that release of certain highlighted information in the current policy manual "would interfere with the law enforcement functions of the Police Department and jeopardize the lives and safety of El Paso Police Officers." After reviewing your arguments and the current policy manual, we conclude that you may withhold the highlighted information in Exhibit B. See id.; Gov't Code § 552.108(b)(1).
With respect to the policies, procedures, and rules concerning suicide attempts and threats of violence against police officers in effect on April 20, 1980, you state "it is impossible for the City to determine what Police Department policies were in effect on April 20, 1980." The Public Information Act does not require the department to make available information which does not exist nor does it require a governmental body to prepare new 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 (1992), 362 (1983). Nevertheless, the department must make a good faith effort to relate a request to information held by it. Open Records Decision No. 87 (1975); see Gov't Code § 552.353 (providing penalties for failure to permit access to public information). In this instance, you have submitted a copy of a policy manual created sometime between 1978 and 1982 and revised at least six times between its creation and 1988, when a new manual was created. You claim that the highlighted portions of the prior manual are excepted from disclosure under section 552.108(b)(1) of the Government Code because "the policy, practice and procedure [expressed in the older manual] basically remains the same" today. Based on this similarity, you contend that release of the information in the old policy manual would have a negative impact on the ability of officers to catch suspects [and] prevent loss of life" and would "endanger the lives and safety of the officers themselves." Because the highlighted information contained in the prior policy manual is the "same [as] or similar to" information contained in the current policy manual and thus release of the information would still interfere with current law enforcement, we find that you may also withhold the highlighted information contained in Exhibit E. See Gov't Code § 552.108(b)(1); ORD 531.
The requestor also submitted four factual questions to the department and sought to obtain laws and regulations from the department. However, the Public Information Act does not require governmental bodies to perform legal research for a requestor, see Open Records Decision No. 563 at 8 (1990) (considering request for federal and state laws and regulations), and "does not require governmental bodies to provide answers to general inquiries." Open Records Decision No. 555 at 1 (1990). Therefore, the department need not respond to these inquiries.
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 Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ).
Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.
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.
Nathan E. Bowden
Ref: ID# 139932
Encl: Submitted documents
cc: Mr. Michael H. Draper
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US