Texas Supreme Court Rejects Texas Attorney General’s Appeal, Preserving Law Enforcement Investigative Confidentiality in Important Public Information Act Case

By: George Hyde*

On October 20, 2017, the Texas Supreme Court issued its ruling rejecting the Texas Attorney General’s appeal of this important Public Information Act case. The City of Carrollton sued the Texas Attorney General appealing his letter rulings in ten requests for information made to the city, from the same requestor. All the requests related to specific occasions of city police activity in the requestor’s neighborhood, including several calls for service that the requestor himself initiated. The city timely sought determinations from the Attorney General asserting that responsive information was either or both exempted from mandatory disclosure or confidential by external law. The information sought to be withheld chiefly included content from notes generated within a Computer–Aided Dispatch (CAD) system that the city’s police department utilizes.

While there was no dispute that the CAD notes in question would constitute “public information” within the PIA’s broad definition, the matter turned on the interpretation of the law-enforcement exception in Section 552.108 of the Act. Section 552.108 empowers governmental bodies to withhold both ordinary “public information” and completed reports, evaluations, or investigations that would otherwise be subject to “super-public” disclosure under Section 552.022 where such a release would interfere with law enforcement. The city invoked Section 552.108 in response to all ten requests. With respect to nine of the ten requests, the Attorney General agreed with the city that the information at issue would satisfy Subsections (a)(1), (a)(2), or (b)(2) of the law-enforcement exception. However, the Attorney General also concluded that significant portions of this otherwise-protected information was “basic information” subject to disclosure under Subsection (c).

The 2016 ruling by the Third Court of Appeals was in favor of the City of Carrollton. The court held that Section 552.108(c) of the Act explicitly prevents the release of even Houston Chronicle “basic information” unless the police records are concerning either: (1) an arrested person, (2) an arrest, or (3) a crime. Therefore, where Section 552.108 of the Act applies to prevent disclosure of police records, basic information is not subject to release unless the record involves an arrested person, an arrest or a crime. See Tex. Loc. Gov’t. Code § 552.108(c). The court specifically held: “there is simply no support for extending that provision’s disclosure requirement to ‘basic information’ that is not ‘about an arrested person, an arrest, or a crime’ as the Attorney General would have us do. If Subsection (c) should apply more expansively, that change must come from the Legislature through statutory amendment. Courts must instead ‘take statutes as they find them.’”

Absent a granted motion for reconsideration, the Texas Attorney General will soon be mandated to apply Section 552.108(c) as the Third Court of Appeal ruled. See City of Carrollton v. Paxton, 490 S.W.3d 187, 200–02 (Tex. App. 2016), reh’g overruled (June 14, 2016), review denied (Oct. 20, 2017).

*For further information, please contact George Hyde of Russell Rodriguez Hyde Bullock, LLP, who handled the case: ghyde@txlocalgovlaw.com.