TR ANS ACTIONS DIVISIOND AV I D A. E S C AM I L L ACOUNTY ATTORNEYJOHN C. HILLE, JR., DIRECTOR †STEPHEN H. CAPELLEFIRST ASSISTANTBARBARA J. WILSONM ARY ETT A GERHARDTJ AMES W. COLLINSEXECUTIVE ASSISTANTTENLEY A. ALDREDGE314 W. 11TH, STREETGRANGER BLDG., SUITE 420AUSTIN, TEX AS 78701J AMES M. CONNOLLYP. O. BOX 1748AUSTIN, TEX AS 78767ELIZ ABETH H. WINN(512) 854-9513F AX: (512) 854-4808† Member of the Collegeof the State Bar of TexasDANIEL BRADFORDMarch 24, 2014Hand DeliveredMs. Amanda Crawford, Division ChiefOffice of the Attorney General of Texas—Open Records DivisionP.O. Box 12548Austin, Texas 78711-2548Re:Request from Wayne Slater on 3/11/2014—Request for Rulingand Supplemental BriefDear Ms. Crawford:On behalf of the Travis County District Attorney’s Office (“TCDA”), and underGovernment Code section 552.301, we request a ruling for these open records requests.Below is our supplemental brief setting forth the exceptions to disclosure.By copy of this letter, we are informing the requestor that TDCA wishes towithhold the requested information and are asking for a decision from your office.The requested information is excepted from disclosure under section 552.108.Section 552.108 of the Government Code states in pertinent part:(a) Information held by a law enforcement agency or prosecutor that dealswith the detection, investigation, or prosecution of crime [is exceptedfrom required public disclosure] if:(4) it is information that:(A) is prepared by an attorney representing the statein anticipation of or in the course of preparingfor criminal litigation; or307579-1 267(B) reflects the mental impressions or legalreasoning of an attorney representing thestate.(b) An internal record or notation of a law enforcement agency orprosecutor that is maintained for internal use in matters relating to lawenforcement or prosecution is excepted from the requirements ofSection 552.021 if:.....(3) the internal record or notation:(A) is prepared by an attorney representingthe state in anticipation of or in the course ofpreparing for criminal litigation; or(B) reflects the mental impressions or legalreasoning of an attorney representing thestate.(c) This section does not except from [required public disclosure]information that is basic information about an arrested person, anarrest, or a crime.In Curry v. Walker, 873 S.W.2d 379 (Tex. 1994), the Texas Supreme Court heldthat a request for a district attorney’s entire file is necessarily a request for work productbecause “the decision as to what to include in [the file] necessarily reveals the attorney’sthought processes concerning the prosecution or defense of the case.” Curry, 873 S.W.2dat 380 (quoting National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 460(Tex. 1993, orig. proceeding)).In this instance, the requestor seeks “…any documents, materials and informationabout the case…” We believe that the request essentially encompasses a request for theDistrict Attorney’s Office’s entire investigation file in a case in which Wendy Davis wasa suspect. All of the requested information was created or assembled by a prosecutor inanticipation of or in the course of preparing for criminal litigation; in addition, Curryprovides that the release of the requested information would reveal the mentalimpressions or legal reasoning of prosecutors in the District Attorney’s Office.Accordingly, we believe that the District Attorney’s Office may withhold the requestedinformation pursuant to subsections (a)(4) and (b)(3) of section 552.108 of theGovernment Code. To the extent that your office finds that Curry is not applicable, weassert in the alternative that all prosecutor notes are excepted from disclosure undersubsections (a)(4) and (b)(3) because they were prepared by a prosecutor in anticipationof or in the course of preparing for criminal litigation and contain the prosecutor’s mentalimpressions. We have sent a representative sample for your review.307579-1 267Alternatively, the requested information may be withheld under GovernmentCode section 552.108(a)(1).Government Code section 552.108 states in relevant part:(a) Information held by a law enforcement agency or prosecutor thatdeals with the detection, investigation, or prosecution of crime isexcepted from [required public disclosure] if:(1) release of the information would interfere with thedetection, investigation, or prosecution of crime[.]Here, the requested information is the subject of an open investigation with the FederalBureau of Investigation (“FBI”); the TDCA objects to the information’s release becausedoing so would interfere with the FBI’s prosecution of the crime underlying theinformation. Accordingly, we assert on behalf of the TCDA that this information may bewithheld under Government Code section 552.108(a)(1). We have sent a representativesample for your review.Some of the requested information may be withheld under Government Codesection 552.108(a)(2).Government Code section 552.108(a)(2) states:(a) Information held by a law enforcement agency or prosecutor thatdeals with the detection, investigation, or prosecution of crime isexcepted from [required public disclosure] if . . .(2) it is information that deals with the detection,investigation, or prosecution of crime only in relation to aninvestigation that did not result in conviction or deferredadjudication[.]Here, the requested information relates to a TCDA criminal investigation that did notresult in conviction or deferred adjudication. Accordingly, we assert on behalf of theTCDA that this information may be withheld under Government Code section552.108(a)(2). We have sent a representative sample for your review.In conclusion, on behalf of the TCDA, we ask that you rule on whether theenclosed information must be released to the requestor. If you have any questions, pleasecontact me at (512) 854-4168, or by e-mail at elizabeth.winn@co.travis.tx.us.Sincerely,307579-1 267Elizabeth Hanshaw WinnAssistant County AttorneyEnclosures: request letter, representative samples of requested informationc:Nicole WaggonerTravis County District Attorney’s Office(emailed, without enclosures)Dayna BlazeyTravis County District Attorney’s Office(emailed, without enclosures)Wayne SlaterSenior Political WriterThe Dallas Morning News(via email to wslater@dallasnews.com, without enclosures)307579-1 267