Sunday, December 21, 2008

Rozita Swinton, Flora Jessop and more are the subject of this request for information.

Someone is digging for information that can be disclosed under the open records laws of Texas.

UPDATE: Scott Henson (Grits) explains this letter: "They didn't get the records because, supposedly, their investigation of Rozita is still in progress."

(Me again) This is another classic case of never finishing an investigation because it keeps the facts under lock and key.


December 5, 2008

Ms. Zindia Thomas
Assistant Attorney General
Public Information Coordinator
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
0R2008-16582
Dear Ms. Thomas:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 330913.

The Office of the Attorney General (the "OAG") received a request for information concerning Rozita Swinton; Flora Jessop; Sarah Barlow; Dale Evans Barlow; Newbridge Family Shelter telephone calls by Sarah Barlow or Rozita Swinton; Snohomish County Shelter for Battered Women; the HOPE Organization; the domestic violence crisis line in Colorado Springs, Colorado; and the abused counseling center in Ft. Meyers, Florida. The OAG claims Exhibit D is excepted from disclosure under sections 552.108 and 552.137 of the Government Code. We have considered the OAG's claimed exceptions to disclosure and have reviewed the submitted information.

Section 552.1 08(a) excepts from disclosure "(i)nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime ... if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime." Generally, a governmental body claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See Gov't Code §§ 552.108(a)(1), (b)(1), .301(e)(1)(a); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).

The OAG argues section 552.108(a)(l) is applicable because Exhibit D relates to a pending criminal investigation conducted by its Criminal Investigations and Criminal Prosecutions Divisions. Based upon this representation, we conclude release of Exhibit D would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ 'g 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) (court delineates law enforcement interests that are present in active cases). Thus, the OAG may withhold the requested information from disclosure based on section 552.1 08(a)(l ). Because section 552.108 is dispositive, we do not address the OAG's other assertions.

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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3). If the governmental body does not file suit over 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 challenge 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 Hadassah Schloss at the Office of the Attorney General 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.

Sincerely,


Yen-Ha Le
Assistant Attorney General
Open Records Division
YHL/eeg
Ref: ID# 330913
Enc: Submitted documents
cc: Requestor
(w/o enclosures)


I think the key part is this:

"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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code."


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3 comments:

Gritsforbreakfast said...

Actually, the part you highlighted is boilerplate. The key part is this:

"Based upon this representation, we conclude release of Exhibit D would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ 'g 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) (court delineates law enforcement interests that are present in active cases). Thus, the OAG may withhold the requested information from disclosure based on section 552.1 08(a)(l ). Because section 552.108 is dispositive, we do not address the OAG's other assertions."

Bottom line: They didn't get the records because, supposedly, their investigation of Rozita is still in progress.

The Pharisee said...

Thanks, wading through that would have taken me several days, and figuring out the correct conclusion would have been dicey for me at best. Do I get an "E" for "effort?"

Is it safe to assume the requestor was the Houston Chronicle or do we know?

Kurt Schulzke said...

I concur with Grits but would add that it's also possible that they are deliberately dragging their feet on the Swinton investigation in order to deny access to information about her case.