HBA-ATS H.B. 848 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 848
By: Dutton
State Affairs
4/6/1999
Introduced



BACKGROUND AND PURPOSE 

Under the Texas Open Records Act (Act), the public is entitled to
information that is collected, assembled, or maintained by a governmental
body.  However, the Act contains specific exceptions from compelled
disclosure of information relating to certain law-enforcement and
prosecutors' records.  According to Texas case law, the purpose of this
exception is to prevent law enforcement and crime prevention techniques
from being readily available to the public at large, and to protect the
type of information that, if revealed, might endanger the life or physical
safety of law enforcement personnel, or interfere with law enforcement and
crime prevention.  Since 1981, the attorney general has opined that law
enforcement agencies and prosecutors can only claim the law enforcement
exception if the disclosure would unduly interfere with law enforcement or
crime prevention.  In 1996, the Texas Supreme Court overruled this
conclusion. 
 
Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996), involved a Harris County
district attorney's suit seeking a declaratory judgment that the Texas Open
Records Act did not require a prosecutor to disclose "closed" criminal
litigation files (i.e., those cases that were either never prosecuted or
prosecuted to a conclusion).  Relying on its past opinions, the attorney
general argued that the prosecutor could withhold information only if its
release unduly interfered with law enforcement or crime prevention.  The
district attorney argued that the attorney general's construction of the
law had no basis in the Act's text.  According to the district attorney,
the "unduly" requirement was an impermissible administrative limitation
upon the plain language of the Act.  The Supreme Court agreed with the
district attorney, holding that because the statute's plain language makes
no distinction between a prosecutor's open and closed criminal litigation
files, the Act does not require a district attorney to disclose internal
records dealing with detection, investigation, or prosecution of crime. 

H.B. 848 adds the requirement that if the release of an internal record or
notation held by a law enforcement agency or prosecutor that is maintained
for internal use in matters relating to law enforcement or prosecution is
to be excepted from the operation of Section 552.021 (Availability of
Public Information), Government Code, such release must unduly interfere,
rather than interfere, with law enforcement or prosecution.  In addition,
this bill adds the requirement that if the release of information held by a
law enforcement agency or prosecutor is to be excepted from the operation
of Section 552.021, such release must unduly interfere, rather than
interfere, with the detection, investigation, or prosecution of crime.
Additionally, this bill removes the other types of information in Section
552.108 that can be withheld from the public. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 552.108, Government Code, as follows:

(a) Adds the requirement that if the release of information held by a law
enforcement agency or prosecutor that deals with the detection,
investigation, or prosecution of crime is to be excepted from the operation
of Section 552.021 (Availability of Public Information), such  release must
unduly interfere, rather than interfere, with the detection, investigation,
or prosecution of crime.  Deletes the remaining types of information
relating to the detection, investigation, or prosecution of crime that are
inaccessible by the public. 

(b) Adds the requirement that if the release of an internal record or
notation held by a law enforcement agency or prosecutor that is maintained
for internal use in matters relating to law enforcement or prosecution is
to be excepted from the operation of Section 552.021, such release must
unduly interfere, rather than interfere, with law enforcement or
prosecution.  Deletes the remaining types of internal records or notations
that are inaccessible by the public.  Deletes the provision that Section
552.108 (Certain Law Enforcement and Prosecutorial Information) does not
except from the requirements of Section 552.021 information that is basic
information about an arrested person, an arrest, or crime. 

SECTION 2.Makes application of this Act prospective.

SECTION 3.Emergency clause.
  Effective date: upon passage.