Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
February 22, 1982
MARK WHITE
Attorney General
Honorable Henry Wade opinion No. MW-446
Supreme Gxrt Bullding Criminal District Attorney
P. 0. BOX 12546 Sixth Floor, Records Building Re: Whether records listing
Austin. TX. 76711. 2546
512/475-2501
Dallas, Texas 75202 property held by sheriff es a
Telex 9101674-1387 result of arrests are public
Telecopier 512/475-0266 records
Dear Mr. Wade:
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
2141742.8944 You have requested our opinion as to whether records listing
property held by a sheriff as the result of an arrest are subject to
disclosure under the Open Records Act, article 6252-17a. V.T.C.S.
4624 Alberta Ave.. Suite 160
El Paso, TX. 79935-2793
s15153334S4
Section 3(a)(8) of the act excepts from disclosure:
records of law enforcement agencies that deal with
1220 Dallas Ave.. Suite 202 the detection and investigation of crime and the
Houstm. TX. 77002.6966 internal records and notations of such law
713/6500666
enforcement agencies which are maintained for
internal u6e in matters relating to law
606 Broadway, Suite 312 enforcement.
Lubbock, TX. 79401.3479
6061747.5236 In Open Records Decision No. 127 (1976). this office, following the
lead of the court in Houston Chronicle Publishing Company V. City of
4309 N. Tenth. Suite S Houston, 531 S.W.2d 177 (Tex. Civ. App. - Houston 114th Dist.] 1975).
McAllen. TX. 76501.1665 writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976), said that
51216624547 evidence obtained at the scene of a crime is presumptively excepted
from disclosure by section 3(a)(8). In Open Records Decision No. 216
200 Main Plaza, Suite 4OQ
(1978). a further question had arisen regarding the applicability of
San Antonio. TX. 782052797 the exception when an investigative file has been closed without
512/225.4191 prosecution. This office said that, after a file becomes inactive, it
may no longer be accorded the exception by presumption. Information
in a closed file may continue to be withheld, however, if disclosure
An Equal Opporlunityl
Affirmative Action Employer "will unduly interfere with law enforcement and crime prevention." Ex
parte Pruitt. 551 S.W.2d 706, 710 (Tex. 1977). Every inactive file
must be examined on a case-by-case basis , and the governmental agency
claiming 3(a)(8) must demonstrate “how and why [the] particular
exception applies to requested information." Open Records Decision
No. 216 (1978). This position was affirmed in Open Records Decision
No. 252 (1980).
p. 1538
Honorable Henry Wade - Page 2 (MW-446)
Applying these principles to the information under consideration
here, it is clear that records listing property confiscated at the
scene of a crime constitute information about evidence and thus, are
presumptively excepted from disclosure during the .pendency of an
investigation and prior to prosecution of the case. If a file has
been closed, so that it is no longer an active investigatory file, the
custodian of the records must show that their release "will unduly
interfere with law enforcement and crime prevention." When the
custodian claims the applicability of the exception to a particular
closed file, or part of it, and the requestor disputes that
determination, a decision should be requested from this office under
the guidelines established in Open Records Decision No. 252.
SUMMARY
Records listing property confiscated et the
scene of a crime constitute information about
evidence and thus are presumptively excepted from
disclosure by section 3(a)(8) of the Open Records
Act during the pendency of an investigation and
prior to the prosecution of the case.
n
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
p. 1539