CITY OF HOUSTON Sylvester Turner

Legal Department Mayor

Ronald C. Lewis
City Attomey
P.O. Box 1562
Houston, Texas 77251-1562

T.(832) 393-6202
(832) 393-6259
F.

www.houstontx.gov

February 18, 2020

Ken Paxton
Texas Attorney General
P. O. Box 12548

Austin, Texas 78711-2548

Attention: Open Records Division

Re: Public Information Act request received on January 28, 2020, from Mike
Morris, for a listing of Group H (Hazardous Materials) occupancy permits
issued to facilities since 2010. GC No. 26463

Dear General Paxton:

This is a follow-up to my letter dated February 11, 2020. The City of Houston ("City") received the
above referenced request on January 28, 2020 (Exhibit 1). The City believes the responsive
information (Exhibit 2) may be excepted from disclosure pursuant to section 552.101 and 552.108
of the Government Code.

Section 552.101 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." Gov't Code § 552.101.
This exception encompasses information other statutes make confidential.

The City believes the responsive information (Exhibit 2) is confidential under section 552.101 in
conjunction with section 418.178 of the Government Code. Section 418.178 provides in part:

(a) In this section, "explosive weapon" has the meaning assigned by Section
46.01, Penal Code.

(b) Information is confidential if it is information collected, assembled, or

maintained by orfor a governmental entity and:

(1) ismore than likely to assist in the construction or assembly of an

explosive weapon or a chemical, biological, radiological, or nuclear
weapon of mass destruction; or

(2) indications the specific location of:

Council Members: Amy Peck Jerry Davis Abbie Kamin Carolyn Evans-Shabazz Dave Martin Tiffany Thomas Greg Travis Karla Cisneros
Robert Gallegos Edward Pollard Martha Castex-Tatum Mike Knox David W. Robinson Michael Kubosh Letitia Plummer Sallie Alcorn
Controller: Chris Brown
Ken Paxton
February 18, 2020
Page 2

(A) a chemical, biological, agent, toxin, or radioactive material that

is more than likely to be used nit he construction or assembly of

such a weapon; or

(B) unpublished information relating to a potential vaccine or to a

device that detects biological agents or toxins.

Id. § 418.178. The fact information may generally be related to biological toxins does not make the
information per se confidential under section 418.178. See Open Records Decision No. 649 at 3
(1996) (language of confidentiality provision controls scope of its protection). Furthermore, the mere
recitation by a governmental body of a statute's key terms is not sufficient to demonstrate the
applicability of a claimed provision. As with any confidentiality provision, a governmental body
asserting section 418.178 must adequately explain how the responsive information falls within the
scope of the statute. See Gov't Code § 552.301(e)(1)(A) (governmental body must explain how
claimed exception to disclosure applies).

The responsive information (Exhibit 2) consists of documents generated by the Houston Public
Works Department. These documents provide detailed information regarding the locations of H-
occupancy businesses and Tier 2 facilities within the City of Houston. Additionally, information
contained in these reports indicates the specific location, quantity, and identity of chemicals that,
as was demonstrated in the explosion of this facility on January 24'", can cause enormous loss
when used as an explosive. This information is more than likely to assist in the construction or
assembly of an explosive weapon. Accordingly, the City asserts the responsive information (Exhibit
2) must be withheld under section 552.101 of the Government Code in conjunction with section
418.178 of the Government Code.

Section 552.108 of the Government Code

Section 552.108 of the Government Code provides, in part:

(a) Information held by a law enforcement agency or prosecutor that deals with the
detection, investigation, or prosecution of crime is excepted from the requirements
of Section 552.021 if:

(2) it is information that deals with the detection, investigation, or

prosecution of crime only in relation to an investigation that did not
result in conviction or deferred adjudication.

Gov't Code § 552.108(a)(2). The Houston Police Department -- ("HPD") advises that Exhibit 2 is
related to an open and active criminal investigation. The alleged offense occurred on or about
January 24, 2020. Release of the requested information would interfere with the detection and
investigation of a crime. Thus, the City believes that Exhibit 2 should be excepted from public
disclosure pursuant to § 552.108(a)(2). See Exhibit 3, which is not part of the responsive
information.

The City respectfully requests a ruling on this matter. Please do not hesitate to contact me at
832-393-6491 if you need additional information. Please include GC No. 26463 in any future
correspondence concerning this request.
Ken Paxton
February 18, 2020
Page 3

Sincerely,

Jo ph
Assistant City Attorney

JRC/mor

Enclosure(s)

cc: Sent via electronic mail to: mike.morris chron.com

Mike Morris
(wlo Exhibits)

Roberto Medina, HPW

(wlo Exhibits)

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