AG’s opinions on “basic information” under PIA noted as unreasonable and contrary to statutory text says Austin Court of Appeals

The City of Carrollton v Ken Paxton, Attorney General of Texas, No. 032-13-00571-CV (Tex. App. – Austin, March 31, 2016).

This is a Public Information Act (“PIA”) case where the 3rd District Court of Appeals agreed substantially all of the documents are protected from disclosure. This is a very long opinion (29 pages with 88 footnotes), but with good analysis and information.

This case stems from a succession of ten PIA requests, made to the City over a period of approximately four months, by Steven Benzer mostly dealing with police response information. The information sought to be withheld chiefly included notes generated within a Computer-Aided Dispatch (CAD) system that the City’s police department utilizes. The City timely requested an opinion from the Texas Attorney General who opined the “basic information” contained within the documents was subject to release. Following a hearing, the district court denied the City’s summary-judgment motion and granted the Attorney General’s motion, declaring specifically that “basic information within a requested computer-aided dispatch (CAD) report is not excepted from disclosure.”

The court held the Texas Legislature has notably excepted from release information created by law-enforcement under §552.108 (law-enforcement exception). Benzer had been incarcerated for, among other things, engaging in violent, threatening, and retributory behavior toward various neighbors. The liberal instructions within the PIA does not authorize the AG to “construe” the PIA in derogation of the statutory text the legislature has actually used. The court agreed that when records deal with law enforcement investigations which do not result in convictions, they are excepted. Records that, the release of which would interfere with investigation or prosecution are also excepted. The two sections are exclusive and the AG has no discretion to decline to credit either claim, even if raised in the alternative in the same brief.   The Attorney General’s construction of §552.108 is not reasonable or consistent with the statutory text.

Further, the term “basic information” refers to information about an arrested person, an arrest, or a crime. The court did a good job of delving into an explanation of what “basic information” is intended to be and its history after its creation in Houston Chronicle v City of Houston, 531 S.W.2d 177, 185 (Tex. Civ. App.—Houston [14th Dist.] 1975), writ ref’d per curiam, 536 S.W.2d 559 (Tex. 1976). Noting that “[d]espite these somewhat shaky jurisprudential origins, the concept of a constitutional right of public access to certain ‘basic information’ otherwise protected by the law-enforcement exception quickly became enshrined in Attorney General open-records decisions. And subsequent decisions also expanded the concept’s scope and application beyond the parameters originally addressed in Houston Chronicle.”  But since the Legislature defined “basic information” for purposes of Subsection (c), there is no basic information beyond that which is defined. The “Legislature has explicitly limited the potential scope of ‘basic information’ subject to disclosure under Subsection (c) solely to that which is ‘about’ (i.e., on the subject of or concerning) either ‘an arrested person,’ ‘an arrest,’ or ‘a crime.’” If law enforcement neither make an arrest or determine a crime was committed, no basic information can be at issue by definition. This holding disposed of 9 out of the 10 requests.

However, one request did clearly indicate a crime and contained basic information about the crime. The proper focus when applying the physical-safety exception is “whether disclosure of the particular information at issue would create a substantial threat that the information could be used to accomplish physical harm.”  And while the City offered evidence of Benzer’s violent criminal history, that alone does not demonstrate disclosure will create a substantial threat of physical harm to his neighbors. The City failed to establish the threat and also failed to establish the elements of the informer’s privilege. However, since 9 out of 10 requests were reversed as to release, the issue of attorney’s fees is reversed and remanded to the court to reconsider.

If you would like to read this opinion, click here.  Panel: Chief Justice Rose, and Justice Pemberton.  Opinion given by Justice Pemberton.  Attorney for Ken Paxton, Attorney General of Texas is Matthew Entsminger.  Attorneys for the City of Carrollton, Texas are George Hyde, Scott Tschirhart, and Lauren Crawford.

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