TEXAS DEPARTMENT OF PUBLIC SAFETY
5805 N LAMAR BLVD  BOX 4087  AUSTIN, TEXAS 78773-0001
512/424-2000

www.dps.texas.gov

STEVEN C. McCRAW
DIRECTOR
DAVID G. BAKER
ROBERT J. BODISCH, SR.
DEPUTY DIRECTORS

COMMISSION
STEVEN P. MACH, CHAIRMAN
MANNY FLORES
A. CYNTHIA LEON
JASON K. PULLIAM
RANDY WATSON

August 17, 2017
Via Hand Delivery
Office of the Attorney General
Open Records Division
209 West 14th Street, 6th Floor
Austin, Texas 78701
RE:

Public Information Request for records related to Cortina Units (PIR # 17-2694)

DATE REQUEST FOR INFORMATION RECEIVED:
DATE REQUEST FOR RULING SUBMITTED TO ATTORNEY GENERAL:
DATE RESPONSIVE RECORDS SUBMITTED TO ATTORNEY GENERAL:

4/17/2017
8/10/2017
8/17/2017

Dear Open Records Division:
The Department of Public Safety received the above-referenced request for information from G.W.
Schulz on April 17, 2017. The Department has previously detailed the amendments and cost
estimates sent to the requestor, and reiterates that the deposit for the amended request was received
July 27, 2017. As previously noted, we believe some or all of the requested information is excepted
from required public disclosure pursuant to sections 552.101, 552.108, and 552.152 of the
Government Code.
Section 552.101 of the Government Code excepts from disclosure "information considered to be
confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 of the
Government Code excepts from disclosure "information considered to be confidential by law, either
constitutional, statutory, or by judicial decision." For many years, your office determined section
552.101, in conjunction with the common-law right to privacy, protected information from
disclosure when "special circumstances" exist in which the disclosure of information would place
an individual in imminent danger of physical harm. See, e.g., Open Records Decision Nos. 169
(1977) (special circumstances required to protect information must be more than mere desire for
privacy or generalized fear of harassment or retribution), 123 (1976) (information protected by
common-law right of privacy if disclosure presents tangible physical danger). However, the Texas
Supreme Court has held freedom from physical harm does not fall under the common-law right to
privacy. Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.L.C, 343
S.W.3d 112 (Tex. 2011) (holding "freedom from physical harm is an independent interest protected
under law, untethered to the right of privacy"). Instead, in Cox, the court recognized, for the first
time, a separate common-law physical safety exception to required disclosure that exists
independent of the common-law right to privacy. Id. at 118. Pursuant to this common-law physical
safety exception, "information may be withheld [from public release] if disclosure would create a
substantial threat of physical harm." Id. In applying this new standard, the court noted "deference
EQUAL OPPORTUNITY EMPLOYER
COURTESY  SERVICE  PROTECTION

 must be afforded" law enforcement experts regarding the probability of harm, but further cautioned,
"vague assertions of risk will not carry the day." Id. at 119.
Section 552.101 of the Government Code also encompasses information protected by other statutes.
As part of the Texas Homeland Security Act, sections 418.176 through 418.182 were added to
chapter 418 of the Government Code. These provisions make confidential certain information
related to terrorism and related criminal activity.
Section 552.101 encompasses section 418.176 of the Government Code, which states, in relevant
part:
(a)
Information is confidential if the information is collected, assembled, or maintained by or
for a governmental entity for the purpose of preventing, detecting, responding to, or investigating an
act of terrorism or related criminal activity and:
(1)
relates to the staffing requirements of an emergency response provider, including a law
enforcement agency, a fire-fighting agency, or an emergency services agency;
(2)
relates to a tactical plan of the provider; or
(3)
consists of a list or compilation of pager or telephone numbers, including mobile and
cellular telephone numbers, of the provider.
Section 552.108(b)(1) of the Government Code states:
(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for
internal use in matters relating to law enforcement or prosecution is excepted from the requirements
of Section 552.021 if:
(1) release of the internal record or notation would interfere with law enforcement or
prosecution.
Section 552.108(b)(1) is intended to protect “information which, if released, would permit private
citizens to anticipate weaknesses in [a law enforcement agency], avoid detection, jeopardize officer
safety, and generally undermine [law enforcement] efforts to effectuate the laws of this State.” City
of Ft. Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.—Austin 2002, no pet.). Your office has stated
that under the statutory predecessor to section 552.108(b), a governmental body may withhold
information that would reveal law enforcement techniques or procedures. See, e.g., Open Records
Decision Nos. 531 (1989) (release of detailed use of force guidelines would unduly interfere with
law enforcement), 456 (1987) (release of forms containing information regarding location of offduty police officers in advance would unduly interfere with law enforcement), 413 (1984) (release
of sketch showing security measures to be used at next execution would unduly interfere with law
enforcement), 409 (1984) (if information regarding certain burglaries exhibit a pattern that reveals
investigative techniques, information is excepted under predecessor to section 552.108), 341 (1982)
(release of certain information from Department of Public Safety would unduly interfere with law
enforcement because release would hamper departmental efforts to detect forgeries of drivers’
licenses), 252 (1980) (predecessor to section 552.108 is designed to protect investigative techniques
and procedures used in law enforcement), 143 (1976) (disclosure of specific operations or
specialized equipment directly related to investigation or detection of crime may be excepted).

 Section 552.152 of the Government Code provides:
Information in the custody of a governmental body that relates to an employee or officer of the
governmental body is excepted from the [required public disclosure] if, under the specific
circumstances pertaining to the employee or officer, disclosure of the information would subject the
employee or officer to a substantial threat of physical harm.
These records discuss ongoing operations by the Department and other law enforcement agencies at
the Texas border and surrounding area to detect, prevent, and respond to terroristic threats and other
criminal activities. These records include details of staffing and equipment utilized for these
operations and strategies employed in these operations. The records also include information on
previous operations that are used to assess ongoing and future risks to persons and property in these
areas, and are maintained by the Department for this purpose. The records also reflect intelligence
and information gathered in past and current operations for future use in law enforcement
operations.
A portion of the responsive records also relate to Operation Drawbridge, a collaborative program
between the Department, U.S. Border Patrol, and border sheriffs that utilizes motion-detection
cameras located on farms and ranches near the Texas-Mexico border. The cameras are monitored in
real-time, around-the-clock by the Texas Border Security Operations Center, U.S. Border Patrol, the
Texas Joint Crime Information Center, Texas Parks and Wildlife Department, and border sheriffs’
offices. When a smuggling or suspicious event is detected, an alert is immediately sent to all law
enforcement partners to support a subsequent interdiction effort.
Revealing these records would provide wrong-doers, drug traffickers, terrorists, and other criminals
with invaluable information (including information concerning the location of Operation
Drawbridge cameras) concerning the law enforcement efforts at the Texas border and surrounding
area, allowing these groups to identify vulnerabilities and avoid detection. Release of the requested
records would reveal confidential staffing requirements and tactical plans of the Department and
other law enforcement agencies during this ongoing operation, endangering the safety of both law
enforcement personnel and the public in these areas.
Therefore, the Department believes the requested records are confidential and excepted from
required public disclosure in their entirety under sections 552.101, 552.108(b)(1), and 552.152 of
the Government Code.
Please find enclosed the notice of our request for a ruling sent to the requestor and a representative
sample of the records we wish to except from required disclosure. Please feel free to contact me at
(512) 424-2890 if you have any questions.
Sincerely,
Nick Lealos
Assistant General Counsel
Enclosure(s)