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Letter From the City of Pasadena Tx Re Robert Crowe Request for Info Subj Pedro Gonzales Death Sept 26 2007

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CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & MARTIN
A PARTNERSHIP OF PROFESSIONALCORPORAT10NS

ATTORNEYS AT LAW
NORMAN RAY GILES
ATTORNEY AT LAW

DIRECT DIAL NO (7,3j654-9672
E-MAIL: roorman.gilas@chamberlainlawcom

1200 SMITH STREET, SUITE 1400

HOUSTON, TEXAS 77002
(713) 6S8-IB18

HOUSTON
ATLANTA

(800) 342·5829.

(713) 658-2553 (FAX)

www.chamber1olnlow.com

September 26, 2007

Via CM-RRR No. 71603901 984516292627
Texas Attorney General
Open Records Division
209 W. 141h Street, 6 lh Floor
Austin, Texas 7870 I
Re:

Requests for information from the City of Pasadena, Texas by Robert Crowe on
September 12,2007.

Dear Sir:
I represent the City of Pasadena (City), Texas. On July 21,2007 at approximately 2 a.m.,
Pedro Gonzales, Jr. ("Gonzales") was reportedly discovered in the bed of a truck parked outside
a business that was not then open to the public. Gonzales was arrested by officers of the City of
Pasadena police department after Gonzales reportedly resisted the investigating officers' attempts
to conduct an investigation of Gonzales' suspicious behavior. Gonzales subsequently died while
still in the City of Pasadena lockup. The Federal Bureau of Investigation, the Harris County
District Attorney's Office and the City of Pasadena (City) are all conducting investigations in
these events, which have received significant media coverage.
The City has received numerous requests for information from Robert Crowe ("Crowe"),
a reporter with the Hous/on Chronicle newspaper. The City has sent many leiters to your office
seeking determinations whether information responsive to his previous requests are excluded
from public diselosure pursuant to the relevant provisions orthe Texas Public Information Act.
Subsequently, on September 12,2007, the City received the following additional requests
from Crowe:
31.

Request for photographs of the restraining chair the Pasadena Police Department
uses inside its jail; and answers to questions regarding the identification of the
name, make and model of the restraining chair the Pasadena Police Department
uses inside its jail. (fo);hibi/ A).

Page 2

32.

Request for answers to questions regarding the names of officers who arrested
Pedro Gonzales, Jr. on July 20, 2007; the time and location of his Gonzales'
arrest; and explanation of probable cause supporting his arrest~ B).

33.

Request for answers to questions of whether Pedro Gonzales was placed in a
restraint chair in the Pasadena jail between July 18 and July 21; if he was
restrained if placed in a restraint chair; and how long he was restrained, ifhe was?
(Exhibit C).

The City seeks a determination from your office as to whether information responsive to
these request numbers 31-33 from Crowe are excluded from public disclosure pursuant to the
relevant provisions of the Texas Public Information Act.
Crowes' request numbers 31-33 essentially contain the equivalent to legal interrogatories
and the Act does not require a governmental body to prepare answers to questions or to do
research. See Open records Decision Nos. 563 at 8; 555 at 1-2 (1990). Also, it is wellestablished that the Act does not require a governmental body to prepare new information in
response to a written request. Open Records Decision No. 342 (1982). Nor is a governmental
body required to prepare information in the form requested by a member of the public. Open
Records Decision No. 145 (1976); see also Open Records Decision No. 347 (1982). A
governmental body is simply not required to answer factual questions or to, in effect, respond to
legal interrogatories. Open Records Decision No. 347. The Act applies only to information
already transcribed into tangible form. Open Records Decision No. 4252 at I (2002).
As such, Crowe's request for answers to questions propounded in request numbers 31-33
must be denied.
The City has, or will consistent with the requirements of the Texas Public Information
Act, enclose documents in its possession responsive to request numbers 31-33 for your
determination.
Records responsive to Crowes' request numbers 31-33 are also excepted from public
disclosure pursuant to the provisions of TEX.Gov'T CODE § 552.108, commonly referred to as the
"law enforcement" or "investigative exception." Information relating to a pending criminal
investigation or prosecution is specifically excepted under subsections (a)(1) and (b)( I) and (2)
of § 552.108 because release of such information presumptively would interfere with the
detection, investigation or prosecution of crime. See Open Records Decision No. 628 al 6-8
(1994).
The circumstances of Gonzalez's death, detention and incarceration involve a pending
criminal investigation conducted by state and federal law enforcement officials. As such,
documents responsive to Crowe's request number 26 is excepted from public disclosure pursuant
to the provisions ofTEX.GOV'T CODE § 552.108.

P.age 3

Moreover, Crowe's request for photographs of the restraint chair the police department
uses in its jailor authorization for a newspaper photographer to create such photographs is not
permitted under the Texas Public Information Act. TEx.Gov'r CODE § 552.108 provides in
pertinent part that an internal record of a law enforcement agency maintained for internal use in
matters relating to law enforcement or prosecution is excepted from public disclosure when the
release of such record would interfere with law enforcement or prosecution. "Section
552.108(b)(I) 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.'''
TEX. ATTY. GEN. OPP. OR2007-10414, 2007 WL 2403841 (TEX.A.G. 2007)(quoting City ofFort
Worth v. Cornyn, 86 S.W.3d 320 (Tex.App.--Austin 2002, no pet.).
Release of information regarding the type of restraint chair the police department utilizes
and the manner of its use pertains to internal records of a law enforcement agency maintained for
internal use in matters relating to law enforcement or prosecution and is excepted from public
disclosure because the release of such records would interfere with law enforcement or
prosecution. See id. The information Crowe seeks is not generally known by the public,
involves specific operational information regarding specific equipment for use in a jail setting to
maintain the safety and security of the Pasadena City Jail. The release of such information
would impair the jail staffs ability to maintain a safe environment. See id.
Furthermore, request numbers 31-33 are also excluded from public disclosure pursuant to
§ 552.1 03(a) of the Act, commonly referred to as the "Litigation Exception." Section 552.1 03(a)
provides that information related to litigation or anticipated litigation is protected from
disclosure.
Specifically, this exception enables a governmental body to protect its posllton in
litigation and precludes a party involved in litigation from using the Act as a method of avoiding
the rules of discovery used in litigation. Open Records Decision No. 551 at 3 (1990). Not only
has there been broad reaching, sensationalized and inaccurate media coverage of these events,
the City has also received notice from attorney Clyde J. Jackson, III on August 15, 2007,
advising the City that his law firm will pursue any and all claims resulting from the arrest and
subsequent death of Gonzales. Jackson has likewise filed a petition for authorization to take
depositions in anticipation of asserting claims based upon the circumstances of this occurrence.
The City, thus, reasonably anticipates litigation to ensue on this matter and therefore Crowe's
request numbers 31-33 are excluded from disclosure.
In light of these exceptions, the City respectfully requests that the Attorney General
render a decision those items responsive to Mr. Crowes' request numbers 31-33 are prohibited
from public disclosure.

Page 4

By copy of this letter, the City has notified Mr. Crowe that the City seeks to withhold the
requested information and has requested a decision form the Attorney General of Texas.
Sincerely,

Norman Ray Giles
NRG:tmh
Enclosures
0646683.01
003856-000178

cc:

(w/out enclosures)
Robert Crowe
Houston Chronicle
801 Texas Avenue
Houston, Texas 77002

 

 

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