                                 The Attorney General of Texas
                                                February 22, 1982
MARK WHITE
Attorney General

                               Honorable Henry Wade                   opinion No. MW-446
Supreme Gxrt Bullding          Criminal District Attorney
P. 0. BOX 12546                Sixth Floor, Records Building          Re: Whether records listing
Austin. TX. 76711. 2546
512/475-2501
                               Dallas, Texas   75202                  property held by sheriff es a
Telex 9101674-1387                                                    result of arrests are public
Telecopier   512/475-0266                                             records

                               Dear Mr. Wade:
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
2141742.8944                        You have requested our opinion as to whether records listing
                               property held by a sheriff as the result of an arrest are subject to
                               disclosure under the Open Records Act, article 6252-17a. V.T.C.S.
4624 Alberta Ave.. Suite 160
El Paso, TX. 79935-2793
s15153334S4
                                    Section 3(a)(8) of the act excepts from disclosure:

                                         records of law enforcement agencies that deal with
1220 Dallas Ave.. Suite 202              the detection and investigation of crime and the
Houstm. TX. 77002.6966                   internal records and notations of such law
713/6500666
                                         enforcement agencies which are maintained for
                                         internal u6e     in  matters   relating   to   law
606 Broadway, Suite 312                  enforcement.
Lubbock, TX. 79401.3479
6061747.5236                   In Open Records Decision No. 127 (1976). this office, following the
                               lead of the court in Houston Chronicle Publishing Company V. City of
4309 N. Tenth. Suite S         Houston, 531 S.W.2d 177 (Tex. Civ. App. - Houston 114th Dist.] 1975).
McAllen. TX. 76501.1665        writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976), said that
51216624547                    evidence obtained at the scene of a crime is presumptively excepted
                               from disclosure by section 3(a)(8). In Open Records Decision No. 216
200 Main Plaza, Suite 4OQ
                               (1978). a further question had arisen regarding the applicability of
San Antonio. TX. 782052797     the exception when an investigative file has been closed without
512/225.4191                   prosecution. This office said that, after a file becomes inactive, it
                               may no longer be accorded the exception by presumption. Information
                               in a closed file may continue to be withheld, however, if disclosure
An Equal Opporlunityl
Affirmative Action Employer    "will unduly interfere with law enforcement and crime prevention." Ex
                               parte Pruitt. 551 S.W.2d 706, 710 (Tex. 1977). Every inactive file
                               must be examined on a case-by-case basis , and the governmental agency
                               claiming 3(a)(8) must demonstrate    “how  and why [the] particular
                               exception applies to requested information." Open Records Decision
                               No. 216 (1978). This position   was affirmed in Open Records Decision
                               No. 252 (1980).




                                                         p. 1538
Honorable Henry Wade - Page 2      (MW-446)




     Applying these principles to the information under consideration
here, it is clear that records listing property confiscated at the
scene of a crime constitute information about evidence and thus, are
presumptively excepted from disclosure during the .pendency of an
investigation and prior to prosecution of the case. If a file has
been closed, so that it is no longer an active investigatory file, the
custodian of the records must show that their release "will unduly
interfere with law enforcement and crime prevention." When the
custodian claims the applicability of the exception to a particular
closed file, or part of it, and the requestor disputes that
determination, a decision should be requested from this office under
the guidelines established in Open Records Decision No. 252.

                                SUMMARY

               Records listing property confiscated et the
          scene of a crime constitute information about
          evidence and thus are presumptively excepted from
          disclosure by section 3(a)(8) of the Open Records
          Act during the pendency of an investigation and
          prior to the prosecution of the case.
                                                                n




                                           Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin




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