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.