Law Enforcement Records Debbie Lee, Assistant Attorney General Sean Nottingham, Assistant Attorney...

Law Enforcement Records

Debbie Lee, Assistant Attorney GeneralSean Nottingham, 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

Gov’t Code § 552.108 (slide 1 of 4)

Section 552.108 applies to the records of a law enforcement agency or prosecutor.

Example: police department, sheriff’s office, arson investigation unit, constable’s office,

district attorney’s office, campus police department of a private institution of higher education


Discretionary exception:

A law enforcement agency chooses whether to withhold information under this exception.

A law enforcement agency has the “burden of proof” to show section 552.108 applies.

Section 552.108 can be waived.


A law enforcement agency can waive its own claims under section 552.108 by:

• violating the 10-business-day deadline set out in 552.301(b)

• violating the 15-business-day deadline set out in 552.301(e)

• However…

Gov’t Code § 552.108(a)(1)

Section 552.108(a) applies to information relating to a particular criminal investigation.• police offense/incident reports, 911 tapes, patrol car

videos

Claim section 552.108(a)(1) for information that, if released, would interfere with law enforcement or prosecution.

• generally applies to information from a pending (open) investigation or prosecution

• generally will not apply to documents provided to the defendant like citations, DWI statutory warning (DIC-24) and DWI notice of suspension (DIC-25)

Gov’t Code § 552.108(a)(2)

Applies to closed criminal investigations that did not result in conviction or deferred adjudication.

Applies to investigations that ended in a final result.

Examples: • dismissal• no billed by grand jury• prosecutor declines charges and investigation is closed• acquittal• statute of limitations has run and defendant was never

prosecuted

552.108 Reminder

Do not claim section 552.108(a)(1) and 552.108(a)(2) for the same information at the same time because:

• 552.108(a)(1) generally applies to OPEN investigations/prosecutions

• 552.108(a)(2) generally applies to CLOSED investigations/prosecutions

Gov’t Code § 552.108(c)Basic Information

Section 552.108(c) does not protect basic information about an arrested person, arrest or a crime.

Sometimes referred to as “media” or “front page” information, but can be located anywhere.

Basic information includes, among other things: • a detailed description of the offense• identification and description of the complainant• name, age, address, social security number, and

physical condition of arrestee• names of investigating and arresting officers

Gov’t Code § 552.108(c)

Although basic information cannot be withheld under section 552.108(a)(1) or (a)(2), other exceptions may apply to basic information.

Before releasing basic information, you should determine whether any of it is excepted under another provision. • Example: sexual assault victim/complainant’s identifying

information under common-law privacy

Hypothetical (slide 1 of 2)

Galaxy Police Department123 Lucas Drive

Galaxy, Texas 01977

Dear Mr. Gordon,

The Galaxy Police Department received a request for a specified police report pertaining to the theft of blueprints. Our investigation is pending and did not result in conviction or deferred adjudication. Thus, we have deemed the enclosed information to be excepted from disclosure under section 552.108(a)(2) of the Government Code. Please confirm that we may withhold the information under this exception.

Sincerely,Sgt. Ackbar


1. The department complies with section 552.301 by timely requesting this ruling to our office. Did the department successfully argue to withhold the requested information?

• No. The department argues the investigation is pending, but raises section 552.108(a)(2). Section 552.108(a)(2) applies to concluded criminal investigations that did not result in conviction or deferred adjudication. The department should have raised section 552.108(a)(1), which pertains to pending investigations.

Gov’t Code § 552.108(b)(1)

Applies to internal records maintained for use in matters relating to law enforcement or prosecution. • use-of-force guidelines, policy and procedure manuals,

agency-owned cell phone/pager numbers

You must demonstrate that release of the internal record would interfere with your agency’s law enforcement or prosecution efforts.

Gov’t Code § 552.101 Confidential Information

Section 552.101 protects all information that is made confidential by law outside of the PIA.

Generally a mandatory exception.

Section 552.101 must be raised in conjunction with another law outside the PIA (cannot work by itself). Raise in conjunction with:

• Federal or Texas statutes• The common-law (judicial decisions)• Constitutional law

Confidential Information

Confidential information generally must not be released in response to an open records request.

A governmental body generally cannot make a determination on its own that information is confidential.

Unless a governmental body has received a previous determination to withhold information, it must seek a ruling from our office if it believes information is confidential.

Confidential Information to Watch For

Watch out for these common types of confidential information in your records:

• Law enforcement records of a child• Records of alleged/suspected child abuse or neglect• Records protected by privacy

Family Code § 58.007(c)

Records involving delinquent conduct or conduct indicating a need for supervision that occurred on or after 9/1/1997 by a child are generally confidential.

Entire report is confidential.• Do not release basic information.

Section 51.02 defines “child” as an individual 10 to 16 years of age at the time of the conduct. • Inform our office of the age of the child.

Types of Conduct (slide 1 of 2)

Records must relate to an offender who is a child engaged in:

• “delinquent conduct” or• “conduct indicating a need for supervision” • terms defined in section 51.03 of the Family Code

Types of Conduct (slide 2 of 2)

Delinquent Conduct:• violation of penal code• violation of court order• alcohol/drug related offenses• generally does not include traffic offenses (example:

speeding ticket)

Conduct Indicating Need for Supervision:• runaways• violation of ordinances• offenses punishable by fine only

Family Code § 58.007(e)

Pursuant to section 58.007(e), a governmental body cannot withhold the offending child’s law enforcement records from the child or the child’s parent or guardian under section 58.007(c)

But…

Family Code § 58.007(j)

(1) Any personally identifiable information about another juvenile suspect, offender, victim, or witness who is not the child is confidential. • Juvenile victim and witness is an individual under the

age of 18 at the time of the conduct.

and

(2) A governmental body can raise other laws and exceptions to disclosure for the records.

Family Code § 58.007Ask Yourself… (slide 1 of 2)

Do the records involve a child as a suspect/offender between the ages of 10 and 16 at the time of the conduct?

Does the conduct qualify as delinquent conduct or conduct in need of supervision?

Did the conduct occur on or after 9/1/1997?

If no to any one of these, then section 58.007 is not applicable.

If yes to all three, then ask…

Family Code § 58.007Ask Yourself… (slide 2 of 2)

Is the requestor the child offender or the child’s parent/guardian?

If no, the information is confidential in its entirety and you need to assert section 58.007(c).

If yes, the information cannot be withheld from this requestor under section 58.007(c).

In this instance, ask yourself:• Do any other laws or exceptions under the PIA apply to

this information? If so, pursuant to section 58.007(j)(2), raise those exceptions to our office.

• Does the information contain any personally identifiable information of other juvenile suspects, victims or witnesses who are not the parent’s child? If so, this information is confidential under section 58.007(j)(1) and you need to seek a ruling from our office.


Galaxy Police Department

Incident: 15-0123 Offense: TheftDate: 8/20/2015 Time: 8:00am Location: Galaxy, Texas

Complainant: Last: Skywalker First: Anakin DOB: 4/19/1970 Age: 45Suspect: Last: Organa First: Leia DOB: 9/16/1997 Age: 17Witness: Last: Solo First: Hans DOB: 8/12/1996 Age: 19

Narrative

Mr. Skywalker called the department to report some stolen blueprints. He said nothing else in the home was taken. He suspects Leia, a friend of his son’s, may have taken the blueprints. His handyman, Hans, saw Leia snooping around his office that evening. He wishes to press charges against Leia. Insufficient evidence. Case closed.


1. Star News makes a request for incident report number 15-0123. The Galaxy Police Department claims the requested offense report is subject to section 58.007(c) of the Family Code because it pertains to a juvenile suspect. Is section 58.007(c) applicable?

• No. Leia Organa is 17 years old at the time of the offense. Thus, she is not a “child” for purposes of section 58.007.


2. The department wants to withhold the information because the investigation is closed. What should the department argue?

• The department should timely raise section 552.108(a)(2) of the Government Code. The department should inform us that the requested information relates to closed investigation that did not result in conviction or deferred adjudication.

Family Code § 51.14

Records involving delinquent conduct or conduct indicating a need for supervision, that occurred before 1/1/1996 by a child are confidential.

Repealed, but still applies to law enforcement records pertaining to conduct of a child occurring before 1/1/96

Same definitions of child, delinquent conduct, and conduct indicating a need for supervision as in section 58.007.

Remember

Check the date that the conduct occurred.

This will determine if section 58.007 or section 51.14 of the Family Code is applicable.

If the conduct occurred by a child on or after 1/1/96 and before 9/1/97, then neither section 51.14 nor section 58.007 applies.

• Other exceptions such as section 552.108(a)(2) may still apply.

Family Code § 261.201 (slide 1 of 3)

Information concerning investigations of alleged or suspected child abuse or neglect are generally confidential.

Entire report is generally confidential. • Do not release basic information.

“Child” is defined as an individual under 18 years of age.


“Abuse” and “Neglect” defined in section 261.001 of the Family Code.

Examples: sexual assault, indecent exposure, injury to a child, neglectful supervision, child endangerment


Section 261.201(a) protects:

• Report of abuse or neglect of a child, and the identity of the person making the report.

• All records used or developed in an investigation of alleged or suspected abuse or neglect of a child.

Remember

It is your burden to demonstrate the age of the child at issue.

It is your burden to establish that the records at issue were created or used in an abuse or neglect investigation under Chapter 261 of the Family Code.

Family Code § 261.201(h)

Section 261.201 does not apply to an investigation of child abuse or neglect that occurred in a home or facility regulated under Ch. 42 of the Human Resources Code.• Licensed day care centers

Check with the Texas Department of Family and Protective Services/child care licensing section (www.dfps.state.tx.us) to see if a facility is regulated under Ch. 42.

Other laws and exceptions under the PIA may apply to this information (common-law privacy, section 552.108).

Family Code § 261.201(k)

Pursuant to section 261.201(k), an investigating agency cannot withhold a child abuse/neglect investigation or report under section 261.201(a) from: 1. the parent who is not alleged to have committed the

abuse/neglect,2. the managing conservator of the child victim, 3. the legal representative of the child victim, or 4. the child if the child is now 18 or older

However…

Family Code § 261.201(l) – limits 261.201(k)

Any personally identifiable information about another victim or witness under 18 years of age is confidential.

A governmental body can raise other laws and exceptions to disclosure for the records.

The identity of the person who made the report of abuse/neglect is also confidential.

Family Code § 261.201 Ask Yourself… (slide 1 of 3)

1. What is the age of the victim (under 18)?

2. Does the information pertain to an investigation of alleged “abuse” or “neglect” under ch. 261 of the Family Code?

If no to either of these, section 261.201(a) is not applicable. If yes to both, then ask…


3. Is the requestor a 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 18 or over?

If no, the record at issue is confidential in its entirety under section 261.201(a).

If yes, the records may not be withheld from this requestor under section 261.201(a).

However…


4. Do any other laws or exceptions under the PIA apply to this information? If so, raise those exceptions to our office.

5. Does the record contain any personally identifiable information about other victims or witnesses under the age of 18? If so, this information is confidential.

6. Does the record contain the identity of the person making the report? If so, this information is confidential.



Incident: 15-1321 Offense: assaultDate: 9/22/2015 Time: 8:30pm Location: Galaxy, Texas

Victim Last: Skywalker First: Luke DOB: 4/30/1999 Age: 16Suspect Last: Skywalker First: Anakin DOB: 4/19/1970 Age: 45Complainant Last: Amidala First: Padme DOB: 2/1/1975 Age: 40

Narrative

Complainant reported her ex-husband got into a fight with their son, Luke, and cut Luke’s hand with a knife. Suspect was taken into custody. Luke was taken to Empire General Hospital for treatment.


1. Padme makes a request for this report. The Galaxy Police Department timely raises section 261.201 of the Family Code and section 552.108(a)(1) of the Government Code. The department states the information pertains to a pending child abuse investigation. Can this report be withheld from this requestor under section 261.201(a)?

• No. Although the report is generally confidential under section 261.201(a), the requestor is a parent of the victim and she is not alleged to have committed the abuse. Pursuant to section 261.201(k), the department cannot withhold this report from her under section 261.201(a).


• However, pursuant to section 261.201(l)(2), the department may raise other exceptions to disclosure for this information. In this instance, the department also timely raises section 552.108(a)(1). Thus, with the exception of basic information, the department may withhold this report from Luke’s mother under section 552.108(a)(1).

Common-Law Privacy (slide 1 of 5)

Law enforcement records sometimes contain information that is protected by common-law privacy.

This information is confidential and must generally be withheld, even if the law enforcement agency does not object to releasing it.


Protects information that is:

1. highly intimate or embarrassing, and2. of no legitimate concern to the public.

It is your burden to establish both prongs of this test.

Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976)


Types of information protected:

• Information identifying a victim of sexual assault• Information revealing an attempted suicide• Information revealing mental illness• Public citizen’s date of birth• A compilation of an individual’s criminal history


If information meets both prongs of the privacy test, then generally only the private information must be withheld.

However, if the information pertains to a sexual assault, then generally the identifying information of the victim must be withheld.

Pursuant to section 552.023 of the Government Code, a person or that person’s authorized representative has a right of access to records that implicate the person’s privacy interest.• Other exceptions may still apply.


In some instances, the entire report must be withheld under privacy if the requestor knows:

Sexual Assault Case: 1. the identity of the victim

Attempted Suicide Case:1. the identity of the victim, and2. the nature of the incident



Incident: 15-02222 Offense: Attempted suicideDate: 7/1/2015 Time: 10:45pm Location: Galaxy, Texas

Involved party No.1 Last: Calrissian First: Lando DOB: 8/30/1981No.2 Last: Williams First: Billy DOB: 9/18/1972

NarrativeBilly, Lando’s roommate, received a text message from Lando stating “Goodbye, tell everyone I’m sorry, I hope to find peace in my next life.” Officers met Billy at their home. Billy informed officers that Lando took an entire bottle of pills. EMS contacted. Lando transported to Galaxy County Hospital for treatment and observation.


1. The Galaxy Police Department receives a request from a reporter, George Lucas, for “report 15-02222.” The department wants to withhold this report under section 552.101 in conjunction with common-law privacy in its entirety. May the department withhold the entire report?

• No. In this instance, there is no indication the requestor knows both the identity of the individual involved and the nature of the incident, an attempted suicide.

2. What information must be withheld from this requestor under common-law privacy?



Incident: 15-02222 Offense: [Attempted suicide]Date: 7/1/2015 Time: 10:45pm Location: Galaxy, Texas

Involved party No.1 Last: Calrissian First: Lando DOB: [8/30/1981]No.2 Last: Williams First: Billy DOB:[ 9/18/1972]

NarrativeBilly, Lando’s roommate, received a text message from Lando stating [“Goodbye, tell everyone I’m sorry, I hope to find peace in my next life.”] Officers met Billy at their home. Billy informed officers that Lando [took an entire bottle of sleeping pills]. EMS contacted. Lando transported to Galaxy County Hospital for treatment and observation.


Marvel Police Department

Incident: 15-921 Offense: sexual assaultDate: 11/6/2015 Time: 10:30pm Location: Galaxy, Texas

ComplainantLast: Organa First: Leia DOB: 9/16/1997 Age: 18

SuspectLast: Hutt First: Jabba DOB: 5/31/78 Age: 37

NarrativeLeia Organa was at a party hosted by Mr. Hutt, a prominent club owner. He made advances at her all evening. She refused and tried to leave. Mr. Hutt would not let her go and dragged her to his room, where he tried to pin her down and take off her clothes. Ms. Organa was able to knock him off and escape. Victim had multiple scratch marks on her neck and arms.


1. The Galaxy Police Department received the following request from the Empire Times:

“Please give us the November 6th incident report involving Mr. Hutt and Leia Organa?”

The Galaxy Police department timely seeks to withhold the information under section 552.108(a)(1) because it pertains to a pending case.

Is this the best exception to raise for this report?


• No. In this case, the requestor knows the identity of the victim. Thus, the entire report must be withheld under section 552.101 in conjunction with common-law privacy. Basic information should not be released from this report.

Privacy and Criminal History (slide 1 of 2)

When an individual’s criminal history has been compiled by a governmental body, the information takes on a character that implicates the individual’s right to privacy.

Watch out for fishing expeditions seeking unspecified records. • “I want any and all information regarding Luke

Skywalker.”

Privacy and Criminal History (slide 2 of 2)

What is a compilation?

Records must involve the person at issue as a suspect, arrestee, or defendant.

Records in which the person is identified as a victim, complainant or witness are not part of a compilation of that individual’s criminal history.

A request for information about a specific incident does not require the agency to compile unspecified reports pertaining to the person’s criminal history.

Remember (slide 1 of 2)

A request for unspecified records about a named person may implicate that person’s right to privacy.

A request for a specific incident does not require the agency to compile unspecified reports pertaining to the person’s criminal history.

Named person must be listed as a suspect, arrestee, or criminal defendant.

If there are no criminal records, then you can tell the requestor no information exists, and you do not need to request a ruling from our office.

Remember (slide 2 of 2)

Be aware of common situations involving confidential or private information.

Confidentiality provisions often protect more information than section 552.108, the law enforcement exception.

Section 552.101 is mandatory; information in law enforcement records that is confidential by law must generally be withheld.

Remember, even if you believe information is confidential, you still have to ask our office before you withhold any information, unless you have a previous determination.

Law Enforcement Records Debbie Lee, Assistant Attorney General Sean Nottingham, Assistant Attorney...

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