|Office of the Attorney General - State of Texas
December 29, 2000
Mr. Thomas L. Cox, Jr.
Dear Mr. Cox:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 143834.
The Parkland Health and Hospital System (the "system") received a request for information contained in investigation # 06-1279 including a specified report and certain correspondence. The requestor also asked for his personnel file which you state is accessible to the requestor. You claim that the remaining requested information relates to an ongoing criminal investigation and that you informed the requestor that the information would not be turned over. We have considered your arguments.
You state that there is well-established authority from this office that pending criminal investigative files are excepted from disclosure. However, section 552.301(a) of the Government Code provides the following:
A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the exceptions under Subchapter C must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions.
Gov't Code § 552.301(a). Therefore, a governmental body must ask for a decision from this office in order to withhold requested information. Although section 552.108(a)(1) of the Government Code excepts pending criminal investigations, you must still ask this office for a decision pursuant to the requirements of section 552.301 of the Government Code and demonstrate that section 552.108(a)(1) applies to the requested information. Further, you have not informed us that we have previously determined in a prior ruling that investigation # 06-1279 could be withheld from disclosure. Because we have not ruled on the requested information, you must ask this office for a decision regarding the information pursuant to section 552.301(a) of the Government Code.
Pursuant to section 552.301(b) of the Government Code, a governmental body must ask for an attorney general's decision no later than the tenth business day after the date of receiving the written request. Although you do not state when you received the request, the request itself is dated October 3, 2000. Because your request was postmarked November 20, 2000, you failed to request a decision within ten days as required by section 552.301(b).
Pursuant to section 552.301(e)(1), a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code § 552.301(e)(1)(A)-(D). You did not, however, submit to this office copies or representative samples of the specific information that was requested.
Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). Section 552.108 does not provide a compelling reason to overcome the presumption of openness. See Open Records Decision No. 473 at 2 (1987) (discretionary exceptions under the Act can be waived). Further, you have not submitted the information, so we have no basis for withholding the information. Accordingly, you must release the requested information. We caution that the distribution of confidential information constitutes a criminal offense. Gov't Code § 552.352.
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).
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 Hadassah Schloss of 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.
Ref: ID# 143834
cc: Thomas P. Wilkins