Houston Chronicle Pub. Co. v. City of Houston, 1116

• Decision Date: 26 November 1975
• Docket Number: No. 1116,1116
• Citation: 531 S.W.2d 177,82 A.L.R.3d 1
• Court: Texas Court of Appeals
• Parties: HOUSTON CHRONICLE PUBLISHING COMPANY, Appellant, v. CITY OF HOUSTON et al., Appellees. (14th Dist.)

Page 177

531 S.W.2d 177

82 A.L.R.3d 1

HOUSTON CHRONICLE PUBLISHING COMPANY, Appellant, v. CITY OF HOUSTON et al., Appellees.

No. 1116.

Court of Civil Appeals of Texas Houston (14th Dist.).

Nov. 26, 1975.

Rehearing Denied Dec. 17, 1975.

W. Robert Brown, Robert J. King, Liddell, Sapp, Zivley & Brown, Houston, for appellant.

Jonathan S. Day, Frank L. Mauro, Houston, for appellee.

Mary Joe Carroll (Texas Daily Newspaper Assn.), Clark, Thomas, Denius, Winters & Shapiro, Austin, David M. Kendall, Asst. Atty. Gen., Austin, amicus curiae.

CURTISS BROWN, Justice.

The City of Houston, through its police department, maintains a number of forms, records, and instruments relating to police activities, criminal investigations, and incarceration of persons in the jail facilities.

One of these records is called an 'Offense Report.' This report includes: the offense committed, location, identification and description of complainant, premises, time of the occurrence, property involved, vehicles involved, identification and description of witnesses, weather, details of the offense in question, and the names of the investigating officers. Supplementary Offense Reports are frequently added, which may include such items as a synopsis of a purported confession, officers' speculations about a suspect's guilt, investigating officers' views on a witness's credibility, statements by informants, ballistics reports, fingerprint comparisons, and blood and other laboratory tests. Under the evidence, the material contained in the Offense Report is broad enough to justify the inference that it could also include matters such as the results of polygraph tests, the refusal to take such tests, paraffin test results, and spectrographic or other investigative reports.

The 'Personal History and Arrest Record' relates to the arrests and criminal activities of individuals. It contains various identifying numbers, name, race, sex, aliases, place and date of birth, and physical description, with particular emphasis on scars and tattoos. Other personal information included relates to occupation, marital status, and relatives. A mug shot, palm prints, fingerprints, and similar information are included, along with the signature of the arrested party. The principal information maintained by this record is the chronological history of any arrests of that individual. In the event additional arrests are made, they are simply added to the record. The information shows the offense, time of arrest, booking number, location, and arresting officers. This record may or may not be updated to provide information concerning the disposition of the matter. The length of this compilation of arrests depends on the number of times the individual has been handled by the police.

Another record is the 'Houston Police Blotter.' This form includes the arrestee's social security number, name, alias, race, sex, age, occupation, address, 'I.D.' number, and physical condition. The Blotter also shows by whom the arrest was made, the date and time thereof, and booking information, as well as the charge made and the court in which it was filed. Details of the arrest are also given. This record notes any release or transfer, and bonding information.

A record known as a 'Show-up Sheet' is maintained for each twenty-four hour period, showing in chronological order the name of each person arrested in Houston. This record lists in numbered order the arrested individual's name, age, and Houston identification number, the place of arrest, the officers through whom the arrest was effected, and numbers for what may be statistical purposes relating to the modus operandi or 'M.O.' of those apprehended.

Also maintained is what is called an 'Arrest Sheet,' which is somewhat similar to the Show-up Sheet. This record reflects the arrests made from 8:00 A.M. one day to the same hour the next. It simply lists in numbered order the name, race, and age of the suspect. In addition it states the place of arrest, the names of the arresting officers, and the offense for which the suspect was arrested.

For as long as veteran newspaper editors and reporters could recall, the police department had routinely given access to members of the accredited media to the Offense Reports and to the Personal History and Arrest Records. This practice had not always been followed by the Narcotics Division. However, this division was following the same practice on June 14, 1973, the effective date of Tex.Rev.Civ.Stat.Ann. art. 6252--17a (Supp.1974) (hereinafter referred to as the Open Records Act). There is some indication that in rare instances the investigating officers might deny access to the Offense Reports temporarily to avoid hindering the investigation or to facilitate the making of an arrest. Even on these occasions the Offense Report ultimately became available to the press. ¹ In the case of Personal History and Arrest Records, access was had by a limited number of persons and corporations. The access of these persons and corporations was much more restricted than that of the press. In general these persons and corporations consisted of large employers inquiring into the criminal records of prospective employees. The restrictions included the permission of the individual involved for the examination of his or her record and the agreement to hold the City harmless from liability. Certain credit agencies had such privileges under similar guidelines. Insurance companies and relatives of victims were likewise permitted to view these records under some circumstances.

With the exception of the Police Blotter, all of the records maintained by the department and outlined above were available to the press on the effective date of the Open Records Act. The importance of these records to the press for use in the reporting of crimes of interest to the public is undisputed. The record is replete with the expert opinion of highly qualified editors and criminal news reporters that reporting of crime to the interested public would be damaged, hindered, and hampered by the unavailability of these records. The two most important records, and the ones most at issue here, are the Offense Report and the Personal History and Arrest Record. The evidence is that without such records there would be 'holes' in the news story. Furthermore, the press has an obligation to the public to inform them of police activities. In order to accomplish this it must obtain the news. When a paper can no longer obtain the news it cannot remain a successful newspaper. The Offense Reports represent a handy vehicle at a central location which enables a reporter on a criminal beat to evaluate the newsworthiness of the crime in question, the newsworthiness of the persons involved, and the effectiveness of our law enforcement agencies and ultimately our judicial processes. The usefulness of the Personal History and Arrest Record or 'rap sheet' is not so clear, except as to identify notorious, flagrant, and habitual offenders. The use of this material obviously involves a weighing of conflicting valid interests. While there may have been isolated cases of abuse, the record in this case would reflect that such access to these materials has been used responsibly by the press in discharge of a high public purpose.

The practices outlined above were continued until a series of events in January of 1974. The Houston Post requested that the airport security arrest records for the year previous be made public. The City declined the request and requested an Attorney General's opinion. In Open Records Decision No. 18 (January 15, 1974) the Attorney General ruled that the information sought was protected from public disclosure because it constituted arrest records dealing with the detection and investigation of crime, and were records maintained for internal use by the agency in law enforcement. The City Attorney of Houston had issued, on the day previous, his opinion that expressed the view that arrest and offense information were rendered confidential by the provisions of the Open Records Act.

Not surprisingly, representatives of the news media were shocked to discover that legislation that was declared to be for the purpose of opening up to public scrutiny functions of government was being construed to deny access to reports previously available to the press. Following the hue and cry thus raised, the Attorney General took occasion to render his Open Records Decision No. 18A on March 25, 1974. In this decision he adhered to the opinion expressed in Open Records Decision No. 18, but expanded his opinion to include the view that the Act does not disturb the right of police agencies to continue to make available to the press factual information concerning arrests that was customarily furnished prior to the passage of the law. He further expressed the view that the custodian should cooperate in abstracting such information from records that are otherwise unavailable, so long as no confidentiality or right of privacy established by constitution, by statute, or by the courts is violated.

Responding to the second opinion of the Attorney General, the City has followed the policy of allowing media access to Offense Reports, but reserving the right to withhold them if deemed advisable. The City has continued throughout to refuse to allow inspection of Personal History and Arrest Records as permitted before January 14, 1974.

An important segment of the Houston media, the Houston Chronicle Publishing Company (the Chronicle or appellant), refused to accept the City's posture and instituted this suit against the City of Houston (City or appellees), the Mayor, and the Chief of Police, seeking a declaratory judgment pursuant to Tex.Rev.Civ.Stat.Ann. art. 2524--1 (1965) and an injunction. The Chronicle sought a declaration that the Open Records Act established a statutory right of access to Offense Reports and Personal History and Arrest Records, and that the...