The Caller-Times requested the Texas Secretary of State's list of suspected non-citizens registered to vote in Nueces County. Texas Attorney General Ken Paxton cites an exception withholding the information.
The Caller-Times requested the Texas Secretary of State's list of suspected non-citizens registered to vote in Nueces County. Texas Attorney General Ken Paxton cites an exception withholding the information.
The Caller-Times requested the Texas Secretary of State's list of suspected non-citizens registered to vote in Nueces County. Texas Attorney General Ken Paxton cites an exception withholding the information.
RECEIVED |
FEB 14 2019
OPEN RECORDS DIVISION]
KEN PAXTON
ATTORNEY GENERAL OF TEXAS
February 14, 2019
Justin Gordon
Open Records Division
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
Re: Public Information Request to Nueces County
Dear Mr. Gordon:
The Office of the Attorney General (“OAG”) has been informed of three open records requests
made to Nueces County (the “county”). The OAG objects to the release of the requested
information. Specifically, the OAG invokes sections 552.103 and 552.108 of the Government
Code, and this brief is submitted to seek a decision as to whether these exceptions to required
disclosure apply. See Open Records Decision No. 474 (1987) (need of law enforcement agency
to withhold information from disclosure under section 552.108); see also Open Records Letter No.
2017-00378 (2017) (ruling that a govemmental body may withhold information based on the
litigation interest of another governmental body).
1. Information Excepted From Required Public Disclosure Under Section 552.108:
Certain Law Enforcement Records
The OAG asserts the requested information is excepted from required public disclosure under
section 552.108(a)(1) of the Government Code because its release would interfere with the
detection, investigation, or prosecution of a crime. Section 552,108, the “law enforcement
exception,” provides in relevant part as follows:
(a) _ Information held by a law enforcement agency or prosecutor that deals with the
detection, investigation, or prosecution of crime is excepted from the requirements of
Section 552.021 if,
(2) release of the information would interfere with the detection, investigation,
or prosecution of crime[.]
Gov't Code § 552.108(a)(1). The information at issue pertains to an open criminal investigation
by the OAG’s Election Fraud Section. See Elec. Code § 31.006(b) (providing that if referral is
made to OAG, referring complaint is not considered public information until OAG has completed
investigation or determined investigation is not warranted). Release of the information at this time
would interfere with the OAG’s ongoing investigative interests. Therefore, the OAG asserts the
requested information may be withheld under section 552.108(a)(1) of the Government Code.
Post Office Box 12548, Austin. Texas 78711-2548 + (512) 463-2100 + www.texasattorneygeneral. gov1. Information Excepted from Required Public Disclosure Under Section 552.103:
Pending Litigation
Section 552.103(a) states that information is excepted from required public disclosure if it is
information:
relating to litigation of a civil or criminal nature to which the state of a political subdivision
is or may be a party or to which an officer or employee of the state or a political subdivision,
as a consequence of the person’s office or employment, is or may be a party.
Gov't Code § 552.103(a). ‘The purpose of section 552.103 is to enable a governmental body to
protect its position in litigation by forcing parties to obtain information relating to litigation
through discovery procedures. See Open Records Decision No. 551 at 4-5 (1990). ‘The OAG has
the burden of providing relevant facts and documents to show that the section 552.103(a) exception
s applicable in a particular situation. The test for meeting this burden is a showing that (1)
litigation is pending or reasonably anticipated, and (2) the information at issue is related to that
litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 8.W.2d 479, 481 (Tex. App.—
Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.—Houston [Ist
Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4. The OAG must meet both
prongs of this test for information to be excepted under section 552.103(a)
‘The OAG is representing the State of Texas, as well as its client agency the Texas Secretary of
State, in litigation related to the issues raised in the requests. ‘The first case was filed prior to the
county’s receipt of two of the requests. ‘The information at issue relates to the pending litigation
and has not been seen or accessed by the opposing parties. Accordingly, the OAG also asserts
some of the requested information may be withheld from required public disclosure under section
552.103 of the Government Code.
TH. Conclusion
The OAG respectfully requests a decision from the Open Records Division regarding the
applicability of the argued exceptions as provided by the PIA.
Please do not hesitate to contact me at (512) 475-4213 if you have questions or require additional
information.
Sincerely,
Lauren Downey
Assistant Attomey General
Public Information Coordinator
Office of the Attorney GeneralMr. Thomas Buser-Clancy
ACLU Foundation of Texas
thuser-clancy@aclutx.org
Mr. Tom Whitehurst, Jr.
Corpus Christi Caller Times
tom.whitehurst@caller.com
Mr. Greg Chandler
KRIS Communications
gchandler@kristv.com
Ms. Melissa Vela
‘Nueces County Attomey’s Office
melissa. vela@nuecesco.com