1. Offense and Call for Service Reports Tamara Strain Assistant Attorney General Open Records Division Views expressed are those of the presenter, do not constitute legal advice and are not official opinions of the Office of the Texas Attorney General

2.  Information protected: Records of a law enforcement agency or prosecutor Section 552.108

3.  Section 552.108 is a discretionary exception A governmental body chooses whether to withhold information under this section Burden is on governmental body to demonstrate it applies A governmental body waives its section 552.108 interest by violating section 552.301  The need of another law enforcement agency, other than the one that violated section 552.301, can provide a compelling reason to withhold information under section 552.108 Information subject to release under subsections 552.022(a)(2) through 552.022(a)(18) may not be withheld under section 552.108 because section 552.108 does not make information confidential under the Act Section 552.108 Overview

4.  Han Solo’s attorney requests “all information related to a citation received on 1/31/14, including the citing officer’s personnel file.” The Tatooine Police Department maintains an offense report, a copy of the citation, and the citing officer’s personnel file. Hypothetical

6.  The department timely raises section 552.108(a)(1) and explains the requested information pertains to a pending criminal investigation. Can the department withhold the requested information under section 552.108(a)(1) as relating to a pending criminal investigation? Hypothetical

7.  Information Protected: Information that deals with the detection, investigation, or prosecution of crime if its release would interfere with the detection, investigation, or prosecution of crime Section 552.108(a)(1)

8.  Section 552.108(a)(1) applies to information relating to a particular criminal investigation that is pending on the date the governmental body receives a request for information  If the information is a personnel file or an internal affairs investigation, the governmental body needs to explain how the information is related to the pending criminal investigation or prosecution  Citations, Statutory Warnings, and Notices of Suspension are generally not withheld under section 552.108(a)(1) Section 552.108(a)(1)

9.  The submitted information is related to a pending criminal investigation or prosecution  Explain how the submitted information is related to the pending criminal investigation or prosecution What You Need To Tell Us When Asserting Section 552.108(a)(1)

10.  Tatooine Police Department has an offense report, a citation, and the citing officer’s personnel file. Can the department withhold this information under section 552.108(a)(1)? Citation – No, because Han Solo, the cited individual has a copy, release would not interfere with the detection, investigation, or prosecution of crime. Personnel File – Yes, if the department explains how release of the citing officer’s personnel file will interfere with the detection, investigation, or prosecution of crime. Offense Report – In part... Hypothetical

11.  Basic information relating to an arrested person, arrest, or a crime is not excepted from disclosure under section 552.108 Section 552.108(c)

12.  Basic information is the information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.—Houston [14th Dist.] 1975), writ ref’d n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976)  Examples of basic information from Open Records Decision No. 127 (1976): Detailed description of the offense Arrestee’s name Identification and description of the complainant What is Basic Information?

14.  Basic information does not include: Motor vehicle record information Victim or witness information, if the victim or witness is not the complainant  Basic information is frequently referred to as “media” or “front page” information, but it can be located throughout offense reports or in other law enforcement records such as arrest reports, computer-aided dispatch reports, and blotters  Basic information is not released from photographs, dash camera video recordings, or 9-1-1 audio recordings  Although basic information cannot be withheld under section 552.108, other exceptions may apply to basic information What to Remember About Basic Information Under Section 552.108(c)

17.  Tatooine Independent School District has received a request for a copy of the previous internal investigation report. The school district requests a ruling from the OAG in compliance with section 552.301. In its request for a ruling, the school district raises section 552.108(a)(1). May the school district withhold the requested internal investigation report under section 552.108(a)(1)? No, section 552.108 applies to law enforcement agencies. The school district is not a law enforcement agency. Thus, the school district may not withhold the requested internal investigation report based on its own interest. Hypothetical

18.  Can the district withhold the school district’s internal investigation report under section 552.108(a)(1) on behalf of the Tatooine Police Department? Hypothetical

19.  Section 552.108(a)(1) may be raised by an entity that is not a law enforcement agency or prosecutor when the entity is the proper custodian of information The proper custodian must:  Demonstrate the information relates to a pending case of a law enforcement agency; and  Provide a representation from the law enforcement agency that it wishes to have the information withheld Section 552.108(a)(1)

20.  Can the district withhold the school district’s internal investigation report under section 552.108(a)(1) on behalf of the Tatooine Police Department? Yes, if the district explains the Tatooine Police Department wants the internal investigation report withheld under section 552.108(a)(1) because it release would interfere with the department’s ongoing criminal investigation.  If the district does not comply with section 552.301 in requesting a ruling, can the district withhold the internal investigation report under section 552.108(a)(1) on behalf of the Tatooine Police Department? Yes, the need of another governmental body to withhold information under section 552.108(a)(1) is a compelling reason to withhold information. Hypothetical

22.  The Tatooine Police Department received a request for the previous police report. After the items were returned, Han Solo declined to press charges and the prosecutor dismissed the case. What should the department raise if it seeks to withhold this report now? Hypothetical

23.  Information Protected: Information that deals with the detection, investigation, or prosecution of crime if it relates to an investigation that did not result in conviction or deferred adjudication Section 552.108(a)(2)

24.  Examples: Dismissal No-billed by the grand jury Prosecutor declines charges Acquittal Statute of limitations has run and defendant was never prosecuted Section 552.108(a)(2)

25.  The submitted information is related to a closed criminal investigation or prosecution  The criminal investigation or prosecution ended in a result other than conviction or deferred adjudication What You Need To Tell Us When Asserting Section 552.108(a)(2)

26.  What should the department raise if it seeks to withhold this report now? Section 552.108(a)(2), because the prosecutor dismissed the case. Thus, this report relates to a closed investigation that did not result in conviction or deferred adjudication. Hypothetical

28.  The reporting officer has now included Officer Greedo’s cellular telephone number. Can this information be protected under section 552.108? Hypothetical

29.  Information protected Internal records or notations maintained for internal use in matters relating to law enforcement or prosecution, if release will interfere with law enforcement or prosecution Section 552.108(b)(1)

30.  Section 552.108(b)(1) applies to internal records generally used in law enforcement  Examples: Portions of use of force guidelines Portions of policy and procedure manuals Cellular telephone numbers assigned to peace officers Section 552.108(b)(1)

31.  The submitted information consists of internal records or notations maintained for internal use for law enforcement or prosecution  Detailed explanation of how release of the submitted information will interfere with law enforcement or prosecution What You Need To Tell Us When Asserting Section 552.108(b)(1)

32. 552.108(b)(1)

33.  After properly raising section 552.108, the Tatooine Police Department has redacted the report as follows: Is there anything wrong with these redactions? Hypothetical

34.  Section 552.108 is a discretionary exception  Section 552.108(a)(1) is mutually exclusive of section 552.108(a)(2)  Raise section 552.108(b)(1) for internal records generally used in law enforcement  Basic information may not be withheld under section 552.108 What To Remember About Section 552.108

35.  Information Protected: Information that is made confidential by law outside of the Act, including constitutional, statutory, and judicial decisions  Section 552.101 must be raised in conjunction with another law  Section 552.101 should not be raised in conjunction with one of the numbered exceptions in the Act Section 552.101

39.  Information Protected: Law enforcement records of a child relating to delinquent conduct or conduct indicating a need for supervision that occurred on or after September 1, 1997  Section 58.007(c) applies to a child who is ten years of age or older and under seventeen years of age at the time of the conduct  Section 58.007(c) is only applicable if the child is a suspect or offender in the requested information Section 58.007(c) of the Family Code

40.  Delinquent conduct: Conduct, other than a traffic offense, that violates a penal law of Texas or the United States punishable by imprisonment or confinement in jail Certain alcohol related offenses  Conduct indicating a need for supervision: Conduct, other than traffic offenses, that violates the penal laws of Texas that is punishable by fine only or the penal ordinances of a political subdivision of Texas Running away Types of Conduct Covered by Section 58.007

41.  Are the previous police reports subject to section 58.007(c) of the Family Code? Hypothetical

42. subject to section 58.007(c)

43. not subject to section 58.007(c)

44. subject to section 58.007(c)

45.  Can this last report be withheld under section 58.007(c): If the requestor is Luke, Jr.’s neighbor, Wedge? If the requestor is Jason’s attorney? Hypothetical

46.  Information may not be withheld under section 58.007(c) when the requestor is a juvenile justice agency, a criminal justice agency, the child, or the child’s parent or guardian Section 58.007(e) of the Family Code

47.  If the requestor is Luke, Jr.’s neighbor, Wedge. Yes, the report may be withheld under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Government Code.  If the requestor is Jason’s attorney. No, pursuant to section 58.007(e), the requested offense report may not be withheld from Jason’s attorney, as Jason’s authorized representative. Hypothetical

48.  If Jason’s attorney is the requestor: May the department raise section 552.108(a)(1) of the Government Code for the requested offense report? Is there any information that needs to be redacted from the incident report prior to its release to Jason’s attorney? Hypothetical

49.  If the requestor is the child or the child’s parent or guardian, the governmental body must request a decision from the OAG to withhold (1) the identifying information of other juvenile suspects, offenders, victims, or witnesses and/or (2) information that is excepted from disclosure under the Act or other law  Juvenile victims and witnesses for the purposes of section 58.007(j)(1) are individuals who are under the age of 18 at the time of the conduct Section 58.007(j) of the Family Code

50.  May the department raise section 552.108(a)(1) of the Government Code for the requested offense report? Yes. Pursuant to section 58.007(j)(2), the department may raise section 552.108(a)(1) for information that may not be withheld under section 58.007(c).  Is there any information that needs to be redacted from the incident report prior to its release to Jason’s attorney? Hypothetical

51. w/h – 552.101 in conjunction with 58.007(j)(1)

52.  The submitted information consists of law enforcement records that relate to an identified child suspect or offender who was at least 10 years old and under age 17 at the time the conduct occurred  The conduct at issue in the submitted information consists of delinquent conduct or conduct indicating a need for supervision  The submitted information relates to conduct that occurred on or after September 1, 1997  Whether the requestor is a juvenile justice agency, a criminal justice agency, the child, or the child’s parent or guardian, and thus, section 58.007(e) applies  If section 58.007(e) applies, explain whether you seek to withhold the information under another provision of law, such as section 552.108 of the Government Code What You Need To Tell Us When Asserting Section 58.007(c)

55.  Information Protected: Reports of abuse or neglect of a child, the identity of the person making the report of abuse or neglect of a child, and information used or developed in an investigation of abuse or neglect of a child  Records used or developed in a child abuse or neglect investigation may be withheld only if the investigation was conducted by an agency authorized to conduct such an investigation  Applies to records involving a child victim who was under the age of 18 at the time of the alleged abuse or neglect Section 261.201(a) of the Family Code

56.  Section 261.201(a) does not apply to an investigation of child abuse or neglect in a home or facility regulated under chapter 42 of the Human Resources Code Section 261.201(h) of the Family Code

57.  Are the previous reports subject to section 261.201 of the Family Code? Hypothetical

58. subject to section 261.201(a)

60.  Can the reports be withheld under section 261.201: If the requestor is Han Solo, Janey’s father. If the requestor is Leia Solo, Janey’s mother. Hypothetical

61.  An investigating agency cannot withhold child abuse/neglect information under section 261.201(a) from: The parent who is not alleged to have committed the abuse/neglect The managing conservator The legal representative of the child victim The child, if the child is now at least 18 years of age Section 261.201(k) of the Family Code

62.  If the requestor is Han Solo, Janey’s father? Yes, the reports can be withheld from Han under 261.201(a). Although Han is a parent of Janey, the child victim, Han is accused of committing the abuse. Thus, pursuant to section 261.201(k), the requested reports may not be released to Han.  If the requestor is Leia Solo, Janey’s mother? No, the reports cannot be withheld from Leia under 261.201(a). Pursuant to section 261.201(k), Leia has a right of access to the reports as the mother of the victim who is not accused of committing the abuse. Hypothetical

63.  If Leia is the requestor: May the department raise section 552.108? Hypothetical

64.  When releasing information pursuant to section 261.201(k), the governmental body: must withhold any personally identifiable information about a victim or witness who is under 18 and not the subject of the report or another child of the parent, managing conservator, or other legal representative; may raise other exceptions to disclosure; and must withhold the identity of the person who made the report Section 261.201(l) of the Family Code

65.  In response to Leia’s request, the department asserts it wants to withhold the injury to a child report because it relates to the department’s ongoing criminal investigation into the incident. The department complies with section 552.301, raises section 552.108(a)(2), and states the information relates to its ongoing criminal investigation. Can the department withhold the report under section 552.108(a)(2)? IT’S A TRAP! No. Pursuant to section 261.201(l)(2), the department may raise section 552.108(a)(2). However, the department raises section 552.108(a)(2) and states the investigation is ongoing. Thus, the department has not demonstrated the injury to a child report relates to an investigation that ended in a result other than conviction or deferred adjudication. Hypothetical

66.  Is there any information that needs to be redacted prior to release to Leia? Hypothetical

67. w/h – 552.101 in conjunction with 261.201(l)(3)

68.  Explain whether the requested information consists of a report of or was used in a child abuse or neglect investigation or contains the identity of an individual who made a report of child abuse or neglect  Identify the authorized entity that conducted the child abuse or neglect investigation  The age of the child victim What You Need To Tell Us When Asserting Section 261.201(a)

69.  Whether the requestor is the parent of the victim who is not alleged to have committed the abuse/neglect, the managing conservator or legal representative of the child, or the child victim who is now at least 18 years of age and, thus, section 261.201(k) applies  If section 261.201(k) applies, explain whether you seek to withhold the information under another provision of law, such as section 552.108 of the Government Code What You Need To Tell Us When Asserting Section 261.201(a)

70.  Common-law privacy protects information that: (1) contains highly intimate or embarrassing facts, which if publicized would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public  Information must meet both prongs of this test to be withheld  Information contained in offense reports that is subject to common-law privacy includes: A compilation of an individual’s criminal history Information relating to a sexual assault victim Information concerning an attempted suicide Common-Law Privacy

71.  Pursuant to section 552.023 of the Government Code: an individual or the individual’s authorized representative has a right of access to records that implicate the individual’s privacy interests  An individual’s right to privacy lapses at death Common-Law Privacy

72.  Neighbors Han Solo and Lando Calrissian are feuding over who owns a valuable rock formation that sits along the property line. Intending to determine if Han has had issues with other neighbors in the past, Lando makes the following request to the Tatooine Police Department: “I would like all reports involving Han Solo from 2005 to the present.” Hypothetical

73.  The department compiled the following reports involving Mr. Solo: 2007 sexual assault offense report where Han was a witness 2013 offense report listing Han as a suspect for speeding 2014 offense report where Han is listed as a suspect for aggravated assault 2014 offense report where Han was listed as a suspect for injury to a child 2014 offense report listing Han as an involved party in an attempted suicide 2015 offense report where Han was listed as the complainant of a theft 2015 offense report where Han was listed as a complainant of a runaway Hypothetical

74.  May the department withhold any of the responsive offense reports under common-law privacy in response to Lando Calrissian’s request? Hypothetical

75.  A criminal history compilation is a compilation or summary of an individual’s criminal history when created by a governmental body and includes: A note in an offense report stating the governmental body’s database reveals an individual was previously convicted of a specified crime Offense reports depicting an individual as a suspect, arrestee, or criminal defendant when the requestor seeks unspecified records pertaining to a named individual Criminal History Compilation

76.  A compilation does not include records involving an individual as a complainant, victim, or witness  Warrant information is not part of a compilation of criminal history because it involves an individual’s current involvement in the criminal justice system  Driving record information is not included in the definition of criminal history Types of Information Not Included in an Individual’s Criminal History Compilation

77.  A request for specified records does not implicate an individual’s right to privacy  A request for records pertaining to a specified address does not implicate an individual’s right to privacy Types of Requests Which Do Not Implicate an Individual’s Privacy Interest

78.  Can the department withhold the following reports as a compilation of Han Solo’s criminal history? 2007 sexual assault offense report where Han was a witness – No. 2013 offense report listing Han as a suspect for speeding – No. 2014 offense report where Han is listed as a suspect for aggravated assault – Yes. 2014 offense report where Han was listed as a suspect for injury to a child – Yes. 2014 offense report listing Han as an involved party in an attempted suicide – No. 2015 offense report where Han was listed as the complainant of a theft – No. 2015 offense report where Han was listed as a complainant of a runaway – No. Hypothetical

79.  The Tatooine Police Department prepares to release the 2013 offense report involving Han as the suspect for speeding in response to Lando’s request. The following is a copy of the offense report. Must the department withhold any portion of the report under section 552.101 in conjunction with common-law privacy? Hypothetical

80. w/h – 552.101 in conjunction with common-law privacy

81.  Must the department withhold any portion of the sexual assault offense report under common-law privacy? Hypothetical

82.  Information Protected If the requestor knows the identity of the sexual assault victim, the entirety of the offense report must be withheld If the requestor does not know the identity of the sexual assault victim, the identifying information of the sexual assault victim must be withheld  Note: The identity of a sexual assault victim must be withheld under section 552.101 in conjunction with common-law privacy when releasing basic information pursuant to section 552.108(c) Sexual Assault

83.  Can the 2007 sexual assault report be withheld from Lando in its entirety under section 552.101 in conjunction with common-law privacy? No. In this instance, Lando requested all information about Han and does not specify any information. Thus, there is no indication Lando knows the identity of the sexual assault victim.  Is any portion of the sexual assault report excepted from disclosure under section 552.101 in conjunction with common-law privacy? Yes. The department must withhold all identifying information of the sexual assault victim under section 552.101 in conjunction with common-law privacy. Hypothetical

85.  Does the department have to withhold any portion of the attempted suicide report under common-law privacy? Hypothetical

86.  Information Protected If the requestor knows both the identity of the individual who attempted suicide AND knows the individual attempted suicide, the entirety of the offense report must be withheld If the requestor does not know the identity of the individual that attempted suicide OR does not know the individual attempted suicide, only those portions of the information revealing the individual attempted suicide must be withheld  Note: References to an attempted suicide must be withheld when releasing basic information pursuant to section 552.108(c) Attempted Suicide

87.  Can the entirety of the attempted suicide report be withheld from Lando under common-law privacy? No. Lando does not know Leia attempted suicide.  What portions of the attempted suicide report must be withheld from Lando under common-law privacy? Hypothetical

88. w/h – 552.101 in conjunction with common-law privacy

89. OAG’s Open Government Hotline (877) OPEN-TEX (512) 478-6736 OAG Website www.texasattorneygeneral.gov/open/index.shtml Questions?