HomeMy WebLinkAboutResolution - 3070 - Compromise Settlement Agreement-Southwestern Newspaper Corp-Open Records Request - 04_13_1989Resolution #3070
April 1.3, 1989
Item #27
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RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Compromise
Settlement.Agreement and Release between Southwestern Newspapers Corporation
d/b/a Lubbock Avalanche -Journal and the City of Lubbock dated April 3, 1989,
jwhich agreement is hereby ratified by the City Council, attached herewith,
'which shall be spread upon the minutes of the Council and as spread upon the
minutes of this Council shall constitute and be a part of this Resolution as
'if fully copied herein in detail.
Passed by the City Council this 1.3th day of Ap ri1 1989.
B.C. McMINN, MAYOR
ATTEST:
Ran to Boyd, City Secrettty
APPROVED S TO CONTENT:
Thomas J. Nichols, Chief of Police
APPROVED AS TO FORM:
�4 e- e- �/
_
V/
Phn C. Ross, Jr., City Attorney
^�
COP
IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF T
LUBBOCK DIVISION
U. S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
TILED
T - a,F`R — 4198q
3
NANCY DOHERTY, CLERK
By
Deputy
SOUTHWESTERN NEWSPAPERS CORPORATION §
D/B/A LUBBOCK AVALANCHE -JOURNAL §
§ CIVIL ACTION NO.
VS. §
§ CA-5-89-56
THE CITY OF LUBBOCK, LUBBOCK §
COUNTY, TEXAS; LARRY CUNNINGHAM, §
LUBBOCK CITY MANAGER; AND THOMAS §
NICHOLS, LUBBOCK POLICE CHIEF, §
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE
WHEREAS, on January 31, 1989, under and pursuant to Article
6252-17a, V.T.C.S., SOUTHWESTERN NEWSPAPERS CORPORATION, d/b/a
LUBBOCK AVALANCHE -JOURNAL (hereinafter sometimes referred to as
"AVALANCHE -JOURNAL") made an Open Records request of the CITY OF
LUBBOCK (sometimes referred to hereinafter as "CITY"), to obtain
certain CITY OF LUBBOCK POLICE DEPARTMENT (hereinafter sometimes
referred to as "L.P.D."), documentation in the nature of "Offense
Reports" and in specific, the names, addresses, dates, property
alleged to have been taken and property recovered in some one
hundred forty-two (142) alleged burglaries attributed to suspect
Michael Shawn Glidewell; and
WHEREAS, the CITY OF LUBBOCK and its POLICE DEPARTMENT, acting
by their duly constituted Officer and City Attorney, under the
authority of Article 6252-17a, Sections 3(a)(1), (8) V.T.C.S.,
refused such request of the AVALANCHE -JOURNAL and on February 8,
1989, submitted the request of the AVALANCHE -JOURNAL to the Texas
Attorney General for an opinion as to whether such documents and
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information were required to be furnished to the AVALANCHE -JOURNAL
under its request and under the Texas Open Records Act, Article
6252-17a, Sections 4 and 7, V.T.C.S. and such request for Opinion
was assigned I.D. 15586 in the office of the Attorney General; and
WHEREAS, during the pendency of such request in the Office of
the Attorney General and on February 17, 1989, the Plaintiff,
SOUTHWESTERN NEWSPAPER CORPORATION d/b/a LUBBOCK AVALANCHE -JOURNAL,
a Delaware corporation, with its office and principal place of
business in Augusta, Georgia, which publishes newspapers in Lubbock
County, Texas, filed suit in Cause No. 89-525,069 in the 137th
District Court of Lubbock County, Texas, against Defendants, THE
CITY OF LUBBOCK, LARRY CUNNINGHAM, LUBBOCK CITY MANAGER, AND THOMAS
NICHOLS, LUBBOCK POLICE CHIEF, in the nature of an Application for
Injunction, Declaratory Judgment and Application for Writ of
Mandamus, alleging their Open Records request for the above
information and alleging a violation of their constitutional rights
in not receiving the requested information and praying for relief
in the nature of a Writ of Mandamus requiring such materials to be
furnished, a declaration that the constitutional rights of
Plaintiff were violated and for a Preliminary Injunction and
subsequent Permanent Injunction to enjoin Defendants, THE CITY OF
LUBBOCK, LARRY CUNNINGHAM (sometimes hereinafter referred to as
"CUNNINGHAM"), and THOMAS NICHOLS (sometimes hereinafter referred
to as "NICHOLS"), from destroying, substituting, discarding or
altering said Offense Reports, documents and data pertaining to the
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t.a
alleged burglaries attributed to Michael Shawn Glidewell and a
Temporary Restraining Order was issued on March 3, 1989, at 9:00
A.M., from the 137th District Court, restraining any alterations
and changes in such documents by the Defendants, all as is
specifically set forth in such Order; and
WHEREAS, said Defendants instituted a Removal of such Cause
Number 89-525, 069 from the 137th State District Court to the United
States District Court for the Northern District of Texas, Lubbock
Division, where it became Civil Action No. 5-89-56 in such Court,
and said Defendants filed therein a Motion to Dismiss the entire
cause of action, setting forth its claims that Plaintiff failed to
state a cause of action upon which relief could be granted against
any of such Defendants and setting forth its legal basis and
authority for the refusal to furnish the requested information and
for requesting Opinion of the Texas Attorney General and setting
forth its defenses and denial of Plaintiff's claims, all as is set
forth in the Defendants' Motion to Dismiss on file in the above
entitled and numbered cause; and
WHEREAS, Defendants affirmatively warrant and represent there
has been no destruction, substitution, discarding, altering,
amending or any other changes to such Offense Reports or to any
record, computer or otherwise, of the information requested by the
said AVALANCHE -JOURNAL or of any other record, computer or
otherwise, of the LUBBOCK POLICE DEPARTMENT or of the CITY OF
LUBBOCK, relating to Michael Shawn Glidewell; and
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WHEREAS, the United States District Court in the above cause
entered its Order of February 24, 1989, directing all parties to
confer to explore settlement and submit a status report to the
Court within thirty (30) days setting forth the good faith attempts
by the parties to compromise and settle the above cause; and
WHEREAS, the Texas Attorney General on March 15, 1989, sent
a letter to the Lubbock City Attorney and to the LUBBOCK AVALANCHE -
JOURNAL and its attorneys and to the Dallas Times Herald, in I.D.
15586, a decision designated as OR-89-85 in which the Attorney
General, in an opinion ruling required the LUBBOCK POLICE
DEPARTMENT to disclose the information requested by the AVALANCHE -
JOURNAL, which ruling is attached and incorporated herein for all
purposes; and
WHEREAS, based on the Texas Attorney General's ruling, the
undersigned parties have agreed to settle and compromise any and
all claims, differences and controversies by and between them, by
this Agreement, in writing.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
Plaintiff, SOUTHWESTERN NEWSPAPERS CORPORATION d/b/A LUBBOCK
AVALANCHE -JOURNAL, and Defendants, THE CITY OF LUBBOCK, LUBBOCK
TEXAS, LARRY CUNNINGHAM AND THOMAS NICHOLS, the undersigned parties
to this Compromise Settlement Agreement and Release, and in
consideration of the joint promises and agreements by and between
each other, do hereby contract, agree, warrant and represent, as
follows:
(1) Any and all claims, actions, causes of action,
controversies and differences by and between the
Plaintiff, SOUTHWESTERN NEWSPAPERS CORPORATION d/b/A
LUBBOCK AVALANCHE -JOURNAL, and Defendants, THE CITY OF
LUBBOCK, LUBBOCK TEXAS, LARRY CUNNINGHAM AND THOMAS
NICHOLS, are hereby compromised, settled and released.
(2) The Defendants shall deliver to Plaintiff copies of all
LUBBOCK POLICE DEPARTMENT Face Sheets and other
information relating to Michael Shawn Glidewell as
requested by the Plaintiff and ordered furnished under
Texas Attorney General Decision OR-89-85, and the Orders
of the Court in the above cause; such delivery shall be
made within twenty-four (24) hours after the Court has
entered such Order to the Plaintiff at 1722 Broadway,
Lubbock, Texas.
(3) The Defendants warrant and represent that, with regard
to original Offense Reports, no record, computer or
otherwise, of the LUBBOCK POLICE DEPARTMENT, relating to
Michael Shawn Glidewell, has been changed, substituted,
destroyed, altered or amended in any way or to any extent
by TOM NICHOLS or "either of his colonels" (Assistant
Chiefs of Police) or by any other person, so far as the
undersigned know. Additional facts were added as
supplemental reports by the investigating officers as the
investigation progressed, but such additions were in
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addition to the prior records and did not change,
substitute, destroy or alter information or records
previously entered.
(4) The AVALANCHE -JOURNAL never accused the CITY OF LUBBOCK,
LUBBOCK POLICE DEPARTMENT, CITY MANAGER LARRY CUNNINGHAM,
CHIEF OF POLICE THOMAS NICHOLS, or "either of his
colonels" of actually changing, destroying, or altering
records -- only that as custodians of the records -- they
must be responsible for the preservation and care of such
records. It was not the intent of the AVALANCHE -JOURNAL,
its officers, editors or employees in filing the above
entitled cause of action and petition to accuse such
individuals, officials or officers of doing so.
(5) The parties agree to obtain entry of an order by the
Court in the above entitled and numbered cause, which
shall require Defendants, THE CITY OF LUBBOCK, THOMAS
NICHOLS AND LARRY CUNNINGHAM to furnish to Plaintiff
AVALANCHE -JOURNAL, the said Face Sheets and other
information relating to Michael Shawn Glidewell as
requested by the Plaintiff and ordered furnished under
Texas Attorney General Decision OR-89-85, and shall
further dismiss, with prejudice, the above entitled and
numbered cause, with expenses and costs to be apportioned
to the party incurring the same, the AVALANCHE -JOURNAL
or the CITY OF LUBBOCK.
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(6) (a) The Defendants expressly deny any responsibility or
liability to furnish to AVALANCHE -JOURNAL, the
documents and information requested, even under the
Attorney General Ruling and Decision I.D. 15586, but
say that this Compromise Settlement Agreement and
Release is entered into solely to compromise the
differences and make peace between the parties.
IT IS UNDERSTOOD AND AGREED by and between the
parties hereto that any and all claims, actions,
causes of actions or demands or requests for
information by and between the parties hereto, and
arising out of the request for information by the
Plaintiff from the Defendants about Michael Shawn
Glidewell or arising out of any allegations set
forth in the pleadings in the above entitled and
numbered cause, are hereby and forever compromised,
settled and released and there is no further
liability to arise therefrom and any and all
actions, claims and causes of action by and between
the undersigned parties to the present date, are
hereby compromised, released and settled and no
further claims, actions or suits can be brought by
and between the parties hereto for any claims or
causes of action arising out of or relating to the
documents or information requested by Plaintiff
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related to Michael Shawn Glidewell.
(6) (b) The parties expressly deny any responsibility or
liability with regard to each other in the matters
alleged in this lawsuit, but say that this
Compromise Settlement Agreement and Release is
entered into solely to compromise the differences
and resolve the present legal dispute.
IT IS FURTHER UNDERSTOOD AND AGREED that the Order to be
entered in the above entitled and numbered cause, ordering the said
Offense Reports to be furnished, shall be ordered under the facts
and circumstances of the particular request for information
described hereinabove.
IT IS FURTHER UNDERSTOOD AND AGREED that all parties hereto
have been represented by attorneys of their own choice and
selection and that they are entering into this Compromise
Settlement Agreement and Release and executing this Agreement and
Release of all claims after making a full investigation into the
facts and circumstances relating hereto and such parties further
warrant and represent that we are not relying upon any statement,
representation or agreement not set out herein.
The undersigned parties do further warrant and represent that
they have read the above and foregoing instrument and understand
that it is a full, final and complete Compromise Settlement
Agreement and Release of any and all claims held by us in any
capacity as against each other.
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It is agreed and understood by the parties hereto that
execution of the Compromise Settlement Agreement and Release shall
never be deemed or construed as a waiver by the AVALANCHE -JOURNAL
of any rights it has to request further public records from THE
CITY OF LUBBOCK in accordance with state law nor shall it be deemed
a waiver by THE CITY OF LUBBOCK to assert any privilege or
exemption as to any such request so submitted as authorized by
state law.
WHEREFORE, witness the hand of the undersigned this the
day of , 1989.
SOUTHWESTERN NEWSPAPERS CORPORATION
d/b/a LUBBOCK AVALANCHE -JOURNAL
ATTEST: By: Cg4"I'd C?.
Name:
Title:
PLAINTIFF
A TEST:
aQAZ�
City Secretary
CITY OF LUBBOCK
c
By: c•
game:
Title:
DEFENDANT
(SIGNATURES CONTINUED ON NEXT PAGE)
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LARRY C NINGHAM, I dividually
and in s cap
acit as City Manager,
Defendant
THOMAS NICHOLS, Individually
and in his capacity as Police Chief,
Defendant
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,
THE STATE OF TEXAS )
COUNTY OF LUBBOCK )
BEFORE ME, the undersigned, a notary public in and for said
County and State, on this day personally appeared
SOUTHWESTERN
JOURNAL, known
the foregoing
executed the
expressed and
(Name), (Title) of
NEWSPAPERS CORPORATION d/b/a LUBBOCK AVALANCHE -
to me to be the person whose name is subscribed to
instrument, and acknowledged to me that he/she
same for the purposes and consideration therein
in the capacity therein stated.
93�VEN UN ER MY
t .. 0.
THE STATE OF TEXAS
COUNTY OF LUBBOCK
HAND AND SEAL OF OFFICE, this the day of
1989.
Notary P 'c, In Und For t e State
of Texas
My Commission Expires:
R
BEFORE ME, the undersigned, a notary public in and for said
County and State, on this day personally appeared
(Name) , (Title) of
THE CITY OF LUBBOCK, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that
he/she executed the same for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
1989.
Notary Public, In and For the State
of Texas
My Commission Expires:
THE STATE OF TEXAS
BEFORE ME, the undersigned, a notary public in and for said
County and State, on this day personally appeared LARRY CUNNINGHAM,
LUBBOCK CITY MANAGER, of THE CITY OF LUBBOCK, known to me to be the
person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed and in the capacity therein stated.
�ENUNDER MY
"
HAND AND SEAL OF OFFICE, this the 3/-O( day of
1989.
Notary Public, In #Lnd For the State
of Texas
DEBBIE AGUIRRE
NOTARY PUBLIC, STATE OF E A My Commission Expires:
Notary Commission Expire
THE STATE OF TEXAS
BEFORE ME, the undersigned, a notary public in and for said
County and State, on this day personally appeared THOMAS NICHOLS,
LUBBOCK POLICE CHIEF of THE CITY OF LUBBOCK, known to me to be the
person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed and in the capacity therein stated.
GIB 'N UNDER MY HAND AND SEAL OF OFFICE, this the -3Tw _ day of
1989.
Notary Public, Inuand For the State
of Texas
P.DEBB@E AGUIRRE
f
NOTARY pUELIC, STATE OF��
••f„<<+*` Notary Commission Expire i
My Commission Expires:
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ATTORNEY VERIFICATION
I, I I 1nrr AL4 W 2 h--, 10 , the undersigned attorney for
Plaintiff, d her y cer i that the
that this is a full,
final and complete Compromise Set lement Agreement and Release of
any and all claims held, owned or p ssessed by THE CITY OF LUBBOCK,
LUBBOCK, TEXAS; LARRY CUNNINGHAM, LUBBOCK CITY MANAGER; AND THOMAS
NICHOLS, LUBBOCK POLICE CHIEF, and any of their officers,
directors, representatives and any and all persons or parties in
privity with them or any of them, jointly and severally, whether
named specifically herein or not, and that no further claims may
be asserted by anyone. I hereby expressly approve the attached
Compromise Settlement Agreement and Release.
DATED this the day of 1 l 1989.
By:
McWHORTER, COBB AND JOHNSON
Post Office Box 2547
Lubbock, Texas 79408
(806) 762-0214 n r
D. MURRAY 4ENSLEY
State Bar 094 00
Attorneys for Plaintiff
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ATTORNEY VERIFICATION
I, JOHN C. ROSS, JR., the undersigned attorney for Defendant,
THE CITY OF LUBBOCK, do hereby certify that I understand that this
is a full, final and complete Compromise Settlement Agreement and
Release of any and all claims held, owned or possessed by
SOUTHWESTERN NEWSPAPERS CORPORATION D/B/A LUBBOCK AVALANCHE -
JOURNAL; LARRY CUNNINGHAM, LUBBOCK CITY MANAGER; AND THOMAS
NICHOLS, LUBBOCK POLICE CHIEF, and any of their officers,
directors, representatives and any and all persons or parties in
privity with them or any of them, jointly and severally, whether
named specifically herein or not, and that no further claims may
be asserted by anyone. I hereby expressly approve the attached
Compromise Settlement Agreement and Release.
DATED this the 3 day of Conn , 1989.
THE CITY OF LUBBOCK
City Attorney
P. O. Box 2000
Lubbock, Texas 79457
(806) 762-6411
By: 44'C-
HN C. RO S, JR.
tate Bar No. 17303 00
Attorney for Defendant
The City of Lubbock
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ATTORNEY VERIFICATION
I, GEORGE L. THOMPSON, III, the undersigned attorney for
Defendant, LARRY CUNNINGHAM, LUBBOCK CITY MANAGER, do hereby
certify that I understand that this is a full, final and complete
Compromise Settlement Agreement and Release of any and all claims
held, owned or possessed by SOUTHWESTERN NEWSPAPERS CORPORATION
D/B/A LUBBOCK AVALANCHE -JOURNAL; THE CITY OF LUBBOCK, LUBBOCK
TEXAS; AND THOMAS NICHOLS, LUBBOCK POLICE CHIEF, and any of their
officers, directors, representatives and any and all persons or
parties in privity with them or any of them, jointly and severally,
whether named specifically herein or not, and that no further
claims may be asserted by anyone. I hereby expressly approve the
attached Compromise Settlement Agreement -and Release.
DATED this the ( day of �C-/�--'� c�, 1989.
THOMPSON, THOMAS & KILLION, P.C.
200 Texas Commerce Bank Building
P. O. Box 10113
Lubbock, Texas 79408
(806) 762-5216
By:
ORGE L. THOMPSON, III
State Bar No. 19950000
Attorneys for Defendant
Larry Cunningham, Lubbock
City Manager
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ATTORNEY VERIFICATION
I, WILLIAM R. MOSS, the undersigned attorney for Defendant,
THOMAS NICHOLS, LUBBOCK POLICE CHIEF, do hereby certify that I
understand that this is a full, final and complete Compromise
Settlement Agreement and Release of any and all claims held, owned
or possessed by SOUTHWESTERN NEWSPAPERS CORPORATION D/B/A LUBBOCK
AVALANCHE -JOURNAL; THE CITY OF LUBBOCK, LUBBOCK TEXAS; AND LARRY
CUNNINGHAM, LUBBOCK CITY MANAGER, and any of their officers,
directors, representatives and any and all persons or parties in
privity with them or any of them, jointly and severally, whether
named specifically herein or not, and that no further claims may
be asserted by anyone. I hereby expressly approve the attached
Compromise Settlement Agreement and Release.
DATED this the �I�`___— day of , , 1989.
CRENSHAW, DUPREE & MILAM
Post Office Box 1499
Lubbock, Texas 79408-1499
(806) 762-5281
By : W<1�i!
WILLIAM R. MOSS
State Bar No. 14592000
Attorneys for Defendant
Thomas Nichols, Lubbock
Police Chief
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or TEARS
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aTroU EV GF.\ERaL March 15, 1989
Mr. John C. Ross, Jr.
City Attorney
City of Lubbock
P. O. Box 2000
Lubbock, Texas 79457
Dear Mr. Ross:
You ask whether certain information is subject to
required public disclosure under the Texas Open Records Act,
article 6252-17a, V.T.C.S. Your request was assigned
ID# 5586; this decision is designated OR89-85.
Under the Open Records Act, all information held by
governmental bodies is open unless the information falls
within one of the act's specific exceptions to disclosure.
The act places on the custodian of records the burden of
proving that records are excepted from public disclosure.
If a governmental body failstoclaim an exception, the
exception is ordinarily waived unless the information is
deemed confidential under the. act. See Attorney General
Opinion JM-672 (1987). The act does not require this office
to raise and consider exceptions that the governmental body
has not raised.
The Lubbock Police Department received a request from
the Lubbock Avalanche -Journal newspaper for the names and
addresses of the victims of approximately 141 burglaries
cleared by the arrest of a certain individual. It also
requested a list of items taken during each of the
burglaries and a list of any recovered property. Shortly
thereafter, the Dallas Times Herald newspaper submitted to
the police department a request for, among other things, the
offense reports prepared for each of the burglaries cleared
by the arrest of the same individual and arrest reports
relating to that individual. Your office consolidated these
requests and now asks for our decision pursuant to section 7
of the Open Records Act.
.nl'-/•1/.:E- �IIDID !ii"I.RF".1 H1% 4XIV L'T 311111.I)I\G -TVx.1`i 71;711-=:5.1M
a Mr. John C. Ross, Jr.
March 15, 1989
Page 2
In Open Records Decision No. 409 (1984) this office
determined that the common law right of privacy does not
protect the names of burglary victims from disclosure under
the Open Records Act. The location of a crime and the
property involved in a crime, as noted on the front page of
an offense report, is also not excepted from disclosure.
See Houston Chronicle Publishing Co. v. City of Houston, 531
S.W.2d 177 (Tex. Civ. App. - Houston (14th Dist.] 1975),
writ ref'd n.r.e. per curiam 536 S.W.2d 559 (Tex. 1976);
Open Records Decision Nos. 408 (1984), 127 (1976). The
names of burglary victims may be withheld under section
3(a)(8) of the act if release of the names would unduly
interfere with law enforcement and crime prevention. Open
Records Decision No. 409 (1984). For example, certain
burglaries may reveal a pattern which, if discovered, might
reveal an investigative technique. Id. In letter ruling
OR88-078 it was determined that a police department could
withhold the time of day household burglaries occurred
because such information, coupled with the addresses of the
burglarized homes, would amount to an open invitation to
future crimes. Such determinations, however, must be made
on a case -by -case basis. You have not demonstrated such a
pattern here.
The city acknowledges the requestors' right to inspect
copies of the case reports compiled for each of the
burglaries in question, and one requestor has expressed a
willingness to extract the information from the records of
the police department. Yet, for various reasons, the city
objects to providing the requestors with the information
that will permit them to request the separate case reports
for these burglaries. For the reasons set forth in the
following paragraphs, we conclude that the information
requested by the two newspapers is not excepted from
disclosure under the Open Records Act.
You raise arguments under sections 3(a)(1) and 3(a)(8)
of the open Records Act. Section 3(a)(1) protects
information deemed confidential by law or judicial decision.
You contend that disclosure of the requested information is
prohibited by several federal regulations, a provision of
the Texas Family Code, and the informer's privelege.
Several of your arguments concern the police
department's participation in the federal criminal history
record information system. You claim that release of the
requested information would violate federal regulations
limiting the dissemination of criminal history record
information, jeopardize the police department's future
participation in the federal information system, and subject
Mr. John C. Ross, Jr.
March 15, 1989
Page 3
the city to a possible fine of
arguments, of course, presume.that
consists of criminal history record
up to $10,000. These
the requested information
information.
The term "criminal history record information" is
defined to include
information collected by criminal justice
agencies on individuals consisting of iden-
tifiable descriptions and notations of
arrests, detentions, indictments, informa-
tions, or other formal criminal charges, and
any disposition arising therefrom, sentenc-
ing, correctional supervision, and release.
28 C.F.R. § 20.3(b). The information requested -- the names
and addresses of burglary victims and items of property
stolen and recovered -- reveals nothing about the arrest,
detention, formal criminal charge, disposition, sentencing,
correctional supervision, or release of any individual. The
requested information therefore cannot fairly be character-
ized as "criminal history record information." It might be
argued that release of the names and addresses of burglary
victims might somehow indirectly disclose or lead to the
disclosure of criminal history information, but this
possibility does not prohibit disclosure of the requested
information. See Open Records Decision No. 408 (1984).
Furthermore, the federal regulations upon which you rely
permit dissemination of criminal history information to
"[i]ndividuals and agencies for any purpose authorized by
statute, . . . or court rule, decision, or order, as
construed by appropriate State or local officials or
agencies." 28 C.F.R. § 20.21(b)(2). Thus, even if it is
assumed that the information requested in this matter is
criminal history information, it can still be disclosed
pursuant to the Open Records Act and decisions rendered
under it. See 28 C.F.R. Part 20, Appendix. Accordingly, we
conclude that the federal regulations limiting dissemination
of criminal history information do not prohibit disclosure
of the requested information.
A number of your arguments for withholding the
requested information are based on the age of the individual
providing the information to the police department. You
contend that because the individual was less than seventeen
years old at the time the majority of the offenses in which
he is implicated or about which he has given information
occurred, such information may be withheld from disclosure.
' Mr. John C. Ross, Jr.
March 15, 1989
Page 4
You claim that subsection (a) of section 51.14 of the
Family Code prohibits the, release of the information
contained in Exhibit 3. That subsection provides the
following:
(a) Except as provided by Subsection (e)
of this section, all files and records of a
juvenile court, a clerk of court,, or a
prosecuting attorney relating to a child who
is a party to a proceeding under this title
are open to inspection only by:
(1) the judge, probation officers, and
professional staff or consultants of the
juvenile court;
(2) an attorney for a party to the
proceeding;
(3) a public or private agency or
institution providing supervision of the
child by arrangement of the juvenile
court, or having custody of the child
under juvenile court order; or
(4) with leave of juvenile court, any
other person, agency, or institution
having a legitimate interest in the
proceeding or in the work of the court.
We reject this argument. By its clear terms,
subsection (a) applies only to records of "a juvenile court,
a clerk of court, or a prosecuting attorney" and only if the
records relate to a child who is a party to a proceeding
under title 3 of the Family Code. The information requested
by the two newspapers appears on records of a police
department, not on the records of the officials listed in
subsection (a). You do not establish that any proceeding
under title 3 of the Family Code is pending with respect to
the individual who provided- the information contained in
Exhibit 3. Furthermore, because the individual is now more
than 18 years of age, he is not a "child" for purposes of
title 3. Fam. Code § 51.02(1) (definition of "child").
Accordingly, section 51.14(a) of the Family Code is
inapplicable.
You also cite the federal regulation codified at 28
C.F.R. section 20.21(d), which generally prohibits dissemin-
ation of records concerning proceedings relating to the
adjudication of a juvenile as delinquent or in need of
Mr. John C. Ross, Jr.
March 15, 1989
Page 5
supervision. Such records containing criminal history
information may be disseminated to noncriminal justice
agencies only to the extent that there is an agreement with
the criminal justice agency for the provision of services or
research purposes unless dissemination is authorized by
statute, court order, rule, or court decision. You provide
no information confirming the pendency of any proceedings
relating to the adjudication of this or any other individual
as a juvenile. It is unlikely that the individual providing
the information to the police department will face
adjudication proceedings in juvenile court since he has
already been indicted and convicted as an adult for burglary
of a building. See Exhibit 2 (judgment in cause no.
88-407,996). We therefore reject your argument concerning
the applicability of 28 C.F.R. section 20.21(d).
Your final argument for non -disclosure under section
3(a)(1) rests on the applicability of the informer's
privilege. You observe that the informer's privilege
concerns the disclosure of only the name of an informant and
suggest that information provided by the informant is not
subject to disclosure. This ignores the fundamental command
of the Open Records Act that all information held by govern-
mental bodies is open unless it falls within one of the
act's exceptions to disclosure. The informer's privilege
protects only the identity of informers and their statements
to the extent that such statements reveal the identity of
the informers. Open Records Decision No. 515 (1989). The
privilege does not otherwise confer confidentiality on
information that is clearly subject to disclosure. The
identity of the individual in• question is already known to
the public as a result of the numerous newspaper articles
and police statements concerning this matter. The
informer's privilege, therefore, is inapplicable.
You also claim section 3(a)(8) as an exception to
disclosure of the requested information. Much of your
argument, however, discusses the disclosure of information
from a statement provided to the police department by the
individual in question. The requestors in this instance,
however, do not ask for access to the statement or for
information from the statement. Rather, all that is sought
are the names and addresses of burglary victims and property
stolen and/or recovered in the burglaries cleared by the
arrest of the individual who gave the statement.
The bulk of the information requested in this matter
has already been judicially determined to be subject to
disclosure against a claim that the information was excepted
by section 3(a)(8). See Houston Chronicle Publishing Co. v.
Mr. John C. Ross, Jr.
March 15, 1989
Page 6
City of Houston, supra. The names of the victims of the
burglaries, the location of the burglaries, and the
inventory of the property stolen during the burglaries
appear in the police department's case reports prepared at
the time the offenses were reported. This information must
be disclosed. Id.; Open Records Decision Nos. 408 (1984),
127 (1976). The police department may comply with the
request by providing copies of or access to the information
as it appears on the individual case reports in each of the
burglaries cleared by the arrest of the individual in
question.
The police department informed your office that there
is no single document that discloses which of the property
stolen in the burglaries has been recovered by the police.
The Open Records Act does not require a governmental body to
prepare new information. Open Records Decision No. 342
(1982). However, where a minimal computer search will
retrieve existing information stored on a computer, a
governmental body is required to comply with the request for
information. See Attorney General Opinion No. JM-672
(1987). We are not persuaded that information describing
the property recovered by the police is excepted from dis-
closure by section 3(a)(8). Consequently, the police
department is required to disclose such information if it
may be retrieved through a minimal search of the
department's records.
Because case law and prior published open records
decisions resolve your request, we are resolving this matter
with this informal letter ruling rather than with a
published open records decision. If you have questions
about this ruling, pleases refer to OR89-85.
Very truly yours,
Open Go:'emment Section
of the Opir.ian Committee
Open Government Section
of the Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
SA/JSR/bc
cc: Mr. Dave Knapp
Executive Editor
Lubbock Avalanche -Journal
P. O. Box 491
Lubbock, Texas 79401
11
Mr. John C. Ross, Jr.
March 15, 1989
Page 7
Mr. Jack Taylor, Jr.
Special Projects/News Department
Dallas Times Herald
1101 Pacific Ave.
Dallas, Texas 75202
Mr. Brian P. Quinn
Mr. D. Murray Hensley
Mr. Don R. Richards
McWhorter, Cobb, and Johnson
1722 Broadway
Lubbock, Texas 79408