Our office has received an ORR for a "copy of DA file" of one of our criminal cases. I've noticed that the AG ORLs consistently hold that 552.108 excludes such requests because the decision as to what to include in the file necessarily reveals the attorney's thought processes concerning the prosecution or defense of the case.

My question is whether I should rely on this section and these opinions and leave it at that, or continue on to assert other exceptions (.103, .101, .111, etc.) that may apply, but that if asserted may reveal some of the contents of the file. I know that those of you with more experience than I have handled this situation before, and your advice would be appreciated.

Bryce Perry
Wichita County ADA

assert them all. You may have to describe some things but the AG wil not raise exceptions for you.

Not that my own experiences would leave me jaundiced or bitter, but ...

Ray is right. And he's right for another reason he didn't mention. If you include all other applicable exceptions, it may prompt the nascent lawyer who's reviewing your request to take a more serious and thoughtful look at your section 552.108 claim. Why? Because flippantly dismissing the section 552.108 contention won't expediently resolve the entire dispute, given that the other exception claims still have to be addressed. Inexperience and a crushing caseload often motivate one to seek the shortest, smoothest road.

Scott,

If the AG rules for me on .108, why would any of the other exceptions need to be addressed? Indeed, on many .108-based opinions I've read, the AG states that since .108 is dispositive, he will not address the other exceptions.

Bryce

That's what I was trying to say, if somewhat inarticulately. I have seen the AG boffo a 552.108 exception in fairly conclusory fashion. When they did so to us, we had been operating under the presumption that our other potential exceptions were little more than window dressing for the "clearly" dispositive law enforcement claim. So we didn't include them. When the 552.108 argument got the short-shrift, there was nothing else for us to hang our hat on. Meanwhile, the lawyer who wrote the decision apparently was freed from having to give much serious second thought to section 552.108, since he/she wasn't staring down the barrel of having to deal with a bunch of other potential exceptions made pertinent by the rejection of the .108 argument. The point of all this drivel is that if your request for decision contains several other exceptions in addition to the section 552.108 claim, the AG is much more likely to focus upon (and probably uphold) the section 552.108 claim -- if for no other reason than to avoid addressing your other exceptions.

Ahh, makes sense. Thanks for your help.