1. Investigation & Prosecution Files Meredith Coffman Mili Gosar Assistant Attorneys 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

2.  After a night out at a cantina in Tatooine, Han, Luke, and Leia are involved in a landspeeder accident involving a fatality. Tatooine Police Department is called to the scene. The department conducts an investigation and arrests Han for Driving While Intoxicated. The case is forwarded to the Tatooine District Attorney’s Office and charges are accepted. As the district attorney’s office is preparing its case, it receives a request from Yoda, who witnessed the accident, for the district attorney’s office’s entire litigation file. What exception to disclosure should the district attorney’s office raise to successfully withhold the requested information? Hypothetical

3. Section 552.108(a)(4) (slide 1 of 2)  Information protected Information that deals with the detection, investigation, or prosecution of crime if the information is prepared by or reflects the mental impressions or legal reasoning of an attorney representing the state in anticipation of criminal litigation or for criminal litigation  Examples: Witness interview notes Jury observations/voir dire preparations Investigation/case summaries Legal research  Pursuant to section 552.108(c), basic information may not be withheld under section 552.108(a)(4)

4. Section 552.108(a)(4) (slide 2 of 2)  Pursuant to Curry v. Walker, 873 S.W.2d 379 (Tex. 1994), a district attorney’s entire litigation file may be withheld under section 552.108(a)(4) if the request is for the entire litigation file Curry v. Walker determined the decision of what to include in the district attorney’s file necessarily reveals the district attorney’s mental impressions or legal reasoning

5. What You Need To Tell Us For Section 552.108(a)(4)  Whether the information was prepared by or reflects the mental impressions or legal reasoning of an attorney representing the state  Whether the information pertains to anticipated or pending criminal litigation

6. Hypothetical (slide 1 of 5)  What exception to disclosure should the district attorney’s office raise to successfully withhold the requested information?  The district attorney’s office should raise section 552.108(a)(4). With the exception of basic information, the district attorney’s office may withhold the requested information under section 552.108(a)(4) pursuant to Curry v. Walker.

7. Hypothetical (slide 2 of 5)  The district attorney’s office receives a related request from Han. Instead of requesting the entire prosecution file, Han requests the following categories of information from the district attorney’s office: Crash report Medical records Mental health records Emergency medical records 9-1-1 transcripts and audio recordings Dash camera video recordings Photographs Criminal History Record Information Attorney notes

8. Hypothetical (slide 3 of 5)  Can the district attorney’s office withhold the entirety of the requested information under section 552.108(a)(4) pursuant to Curry v. Walker? No. Han has specifically itemized the precise documents held by the district attorney’s office that he seeks. Such a request does not constitute a request for the “entire” file. Thus, we conclude the present request is not a request for the district attorney’s entire prosecution file. The district attorney’s office may not withhold the requested information under Curry, and the district attorney’s office must demonstrate each requested category of information is excepted from disclosure under section 552.108(a)(4) of the Government Code or another applicable exception.

9. Hypothetical (slide 4 of 5)  Can the district attorney’s office withhold the requested attorney notes under section 552.108(a)(4)? Yes, the district attorney’s office may withhold the attorney notes under section 552.108(a)(4) because the notes consist of information prepared by an assistant district attorney in anticipation of or in the course of preparing for criminal litigation.

10. Hypothetical (slide 5 of 5)  Although the district attorney’s office may not withhold the entirety of the requested information under section 552.108(a)(4), is there other law that applies to the requested information?

11. Sample CR-3

12. Section 550.065(b) of the Transportation Code  Information protected A peace officer’s accident report that is completed pursuant to section 550.061, section 550.062, or section 601.004 of the Transportation Code and accident report information compiled under section 201.806 of the Transportation Code  Examples CR-3 CRB-3 ST-3

13. Section 550.065(c) of the Transportation Code  A governmental body must release an accident report to certain enumerated persons, including: Any person involved in the accident or his/her authorized representative Owner of a vehicle or property damaged in the accident Insurance company that issued a policy covering a person involved in the accident Radio or television station A newspaper that is free, published once a week, and available to the general public Any person who may sue because of death resulting from the accident  Section 550.065(c-1) requires a governmental body to create a redacted accident report that may be requested by any person

14.  Can the district attorney’s office withhold the CR-3 from Han under section 552.101 in conjunction with section 550.065(b)? No. Han is one of the individuals enumerated in section 550.065(c). Thus, the district attorney’s office must release the requested CR-3 to Han. Hypothetical (slide 1 of 3)

15.  Yoda specifically requests the CR-3. Can the district attorney’s office withhold the CR-3 from Yoda under section 550.065(b)? Yes. Yoda is not an individual enumerated in section 550.065(c). Accordingly, the district attorney’s office must withhold the CR-3 under section 552.101 in conjunction with section 550.065(b). However, the district attorney’s office must release a redacted report to Yoda pursuant to section 550.065(c-1). Hypothetical (slide 2 of 3)

16. Hypothetical (slide 3 of 3)  The district attorney’s office has copies of dash camera video recordings of the arrest of Han and the administration of the field sobriety test to Han. May the district attorney’s office withhold these recordings from Han?

17. Article 2.139 of the Code of Criminal Procedure  Provides a right of access to a person stopped or arrested on suspicion of driving while intoxicated, driving while intoxicated with child passenger, intoxication assault, or intoxication manslaughter to footage of: the stop the arrest the conduct of the person stopped, including administration of a field sobriety test a procedure in which a specimen of the person’s breath or blood is taken  The video recording must have been made by or at the direction of the peace officer who made the stop or arrest

18. Hypothetical  May the department withhold these dash camera video recordings from Han? No. Han was arrested for suspicion of driving while intoxicated, and the video recordings portray his arrest and field sobriety test. Thus, Han has a right of access to the dash camera video recordings under article 2.139.

19. Hypothetical

20. Sections 772.118, 772.218, and 772.318 of the Health and Safety Code  Information protected Originating telephone numbers and addresses of 9-1-1 callers furnished by a 9-1-1 service supplier  The applicability of these sections depends on the population size of the county in which the emergency communication district is located 772.118 = population greater than 2 million 772.218 = population greater than 860,000 772.318 = population greater than 20,000  Sections 772.118, 772.218, and 772.318 do not apply to information a 9-1-1 caller provides

21. What You Need To Tell Us  Whether your governmental body is part of an emergency communication district established under one of these sections  Whether the information contains the originating telephone number or address of a 9-1-1 caller  Whether the telephone number or address was provided by a 9-1-1 service supplier

22. Hypothetical withhold -.101/772.318

23.  Information Protected Information that (1) contains highly intimate or embarrassing facts, which if publicized would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public  The 3 rd Court of Appeals concluded dates of birth of public citizens are protected by common-law privacy Common-law Privacy

24. Hypothetical withhold -.101/772.318 withhold -.101/ Common- law privacy

26. Chapter 411 of the Government Code (slide 1 of 2)  Information protected Criminal history record information obtained from the federal National Crime Information Center (“NCIC”) and the Texas Crime Information Center (“TCIC”)

27. Chapter 411 of the Government Code (slide 2 of 2)  Examples of criminal history record information Department of Public Safety computerized criminal history printout FBI numbers An indication of “No record” from NCIC  Criminal history record information does not encompass driving record information License plate checks are not withheld as criminal history record information  Information pertaining to an individual’s current involvement in the criminal justice system is not criminal history record information Warrant information is not withheld as criminal history record information

28. withhold-.101/Chapter 411 of the Gov. Code

30. Section 159.002 of the Occupations Code (slide 1 of 2)  Information protected A communication between a physician and a patient, relative to or in connection with any professional services as a physician to the patient A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician  Applies to medical records

31. Section 159.002 of the Occupations Code (slide 2 of 2)  Section 159.002 excepts records created by a physician or someone under the supervision of a physician  Section 159.002 excepts both medical records and information obtained from those medical records  When a file is created because of a hospital stay, all documents in a file referring to the diagnosis or treatment are subject to section 159.002

32. withhold page -.101/MPA

33. Hypothetical

34. Section 611.002 of the Health and Safety Code  Information protected Communications between a patient and a professional and records of the identity, diagnosis or treatment of a patient created or maintained by a professional  Professional is defined as: (1) a person authorized to practice medicine; (2) a person licensed or certified by Texas to diagnose, evaluate, or treat any mental or emotional condition or disorder; or (3) a person the patient reasonably believes is authorized, licensed, or certified  Applies to mental health records

35. Hypothetical withhold page -.101/611.002 Health & Safety Code

37. Section 773.091 of the Health and Safety Code (slide 1 of 2)  Information protected A communication between certified EMS personnel or a physician providing medical supervision and a patient that is made in the course of providing emergency medical services to the patient Records of the identity, evaluation, or treatment of a patient by EMS personnel or by a physician providing medical supervision that are created by the EMS personnel or physician or maintained by an EMS provider Applies to emergency medical services records

38. Section 773.091 of the Health and Safety Code (slide 2 of 2)  Pursuant to section 773.091(g), information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services is not confidential under section 773.091

39. Release information subject to 773.091(g), withhold rest of page.101/773.091 Health & Safety Code

40. Hypothetical  The district attorney’s file contains photographs of Lando Calrissian taken at the hospital and photographs of Lando Calrissian taken during his autopsy. Can the district attorney’s office withhold these photographs from Han?

41. Section 11 of Article 49.25 of the Code of Criminal Procedure  Information protected Photographs and X-rays of a body taken during an autopsy  Photos or X-rays sought under subpoena or authority of other law, and autopsy photos and X-rays of a person who dies while in custody of law enforcement are subject to disclosure

42. Section 552.1085  Information protected Certain sensitive crime scene images  Applies only to closed criminal cases  Protects photos or videos taken at a crime scene that depict a deceased person in a state of dismemberment, decapitation, or similar mutilation, or that depict the deceased’s genitalia  Next of kin must be notified of the request  Images may be released to certain requestors, including next of kin, the media, and researchers

43. What You Need To Tell Us For Section 552.1085  Whether the information is part of a closed criminal case  Whether you have notified the next of kin

44. Hypothetical Can the district attorney’s office withhold the photographs from Han?  Under section 11 of article 49.25: In part. The photographs taken during Lando’s autopsy are confidential and must be withheld under section 552.101 in conjunction with section 11 of article 49.25 of the Code of Criminal Procedure. However, the remaining photographs taken at the hospital are not autopsy photographs, and thus, article 49.25 is not applicable.  Under section 552.1085: No. The district attorney’s office is currently preparing its prosecution against Han for Driving While Intoxicated. Thus, the photographs are not part of a closed criminal case, and section 552.1085 does not apply. Further, none of the photographs were taken at a crime scene.

46. Identity Theft (slide 1 of 4)  Section 32.51(b) of the Penal Code provides “[a] person commits an offense if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of... identifying information of another person without the other person’s consent[.]”

47. Identity Theft (slide 2 of 4)  Identifying information under section 32.51(a) of the Penal Code includes: Name and date of birth Unique biometric data, including fingerprint, voice print, or retina or iris image Unique electronic identification number, address, routing code, or financial institution account number Telecommunication identifying information or access device Social Security number or other government-issued identification number

48. Identity Theft (slide 3 of 4)  Identity theft offenses include: Forgery Check fraud Unauthorized use of identifying information Fraudulent use of identifying information Credit card/debit card abuse

49. Identity Theft (slide 4 of 4)  Article 2.29 of the Code of Criminal Procedure Pursuant to article 2.29, a governmental body shall provide to a victim of an alleged section 32.51 violation, a report containing the name of the victim, the name of the suspect, the type of identifying information obtained, possessed, transferred, or used, and the results of any investigation, unless the information is confidential  Article 2.29 applies if the violation of section 32.51(b) occurred on or after September 1, 2005  Only confidential information may be withheld from an offense report that is subject to release pursuant to article 2.29

50. Things to Consider about Identity Theft Reports  Whether the report pertains to a violation of section 32.51 that occurred on or after September 1, 2005  Whether the requestor is the victim of the alleged offense  If the requestor is the victim of an alleged section 32.51 offense, whether any portion of the information is confidential Section 552.108 does not make information confidential

51. Hypothetical (slide 1 of 2)  Obi-Wan Kenobi requests the credit card abuse offense report from the police department. Can the department withhold the offense report from Obi-Wan? No. In this instance, the submitted information pertains to a report of credit card abuse, which constitutes an alleged violation of section 32.51. The alleged offense occurred after September 1, 2005. Thus, the requested report is subject to article 2.29 of the Code of Criminal Procedure and must be released to the victim, Obi-Wan, unless the information at issue is otherwise confidential.

52. Hypothetical (slide 2 of 2)  Sandee Peeples makes a request for the report. Can the department withhold the complainant’s identity from the report prior to releasing it to Sandee?

53. Informer’s Privilege (slide 1 of 3)  Information protected The identities of individuals who report violations of statutes to the police or similar law enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to administrative officials having a duty of inspection or of law enforcement within their particular spheres

54. Informer’s Privilege (slide 2 of 3)  The report must be of a violation of a criminal or civil statute  The informer’s privilege protects the informer’s identity AND any portion of the informer’s statement that might tend to reveal the informer’s identity  The informer’s privilege does not apply when the subject of the information knows the informer’s identity  Individuals who provide information during the course of an investigation, but who do not make a report, such as interviewees, are not informants for purposes of the informer’s privilege

55. Informer’s Privilege (slide 3 of 3)  The informer’s privilege is raised in conjunction with section 552.101  But a governmental body waives the informer’s privilege by failing to comply with section 552.301 of the Government Code Because the courts have determined the informer’s privilege protects the interests of a governmental body, not a third party

56. What You Need To Tell Us For the Informer’s Privilege  The individual at issue reported a violation of law to the police or an administrative official with a duty of inspection or law enforcement  Identify the alleged violation of law  Inform us the alleged violation of law is punishable by civil or criminal penalties  Inform us the subject of the report does not know the identity of the informer

57. Hypothetical  Can the department withhold the complainant’s identity from the report prior to releasing it to Sandee? Yes. The complainant, Obi-Wan, reported an alleged violation of law that is punishable by criminal penalties to the department, and there is no indication Sandee knows the identity of the informer. Thus, the department may withhold the complainant’s identity from Sandee under section 552.101 in conjunction with the informer’s privilege.

58. withhold –.101/ informer’s privilege

59. Hypothetical (slide 1 of 2)  Now assume Obi-Wan requests the report. Can the department withhold the complainant’s identity from the report prior to releasing it to Obi-Wan? No. The informer’s privilege does not make information confidential. Thus, pursuant to article 2.29 of the Code of Criminal Procedure, the department may not withhold any portion of the report under the informer’s privilege from Obi-Wan, who is the alleged victim of credit card abuse.

60. Hypothetical (slide 2 of 2)  Is there any information the department must withhold when releasing the report to Obi-Wan?

61. Section 552.152  Information protected Information that would subject an employee or officer to a substantial threat of physical harm  Example: Identifying information of an undercover officer

62. Section 552.152  A governmental body must demonstrate how release of the information at issue would subject the employee or officer to a substantial threat of physical harm A general assertion that release could endanger an employee or officer will not meet this burden

63. withhold – 552.152

64. OAG’s Open Government Hotline (877) OPEN-TEX (512) 478-6736 OAG Website www.texasattorneygeneral.gov/open/index.shtml Questions?