11. Mug shots.

In cases that are still under active investigation, section 552.108 may except mug shots from disclosure. Op. Tex. Att'y Gen. No. 0R2011-02525 (2011). Several Attorney General decisions have concluded that when the mug shot was taken in connection with an arrest for which the arrestee was subsequently convicted and the case is closed, information may be withheld only if its release will unduly interfere with law enforcement or crime prevention. Tex. Att'y Gen. ORD-616 (1993). However, in Holmes v. Morales, 924 S.W.2d 920, 925 (Tex. 1996), the Texas Supreme Court found that section 552.108's plain language makes no distinction between "open" and "closed" cases, ultimately deciding that the Act categorically excepts the Harris County District Attorney's "closed" litigation files from disclosure. Thus, the Court rejected the Attorney General's construction of section 552.108, that a prosecutor can withhold information only if its release "will unduly interfere with law enforcement or crime prevention." Id. at 923-25. In reaching its decision, the Court noted that, while the federal Freedom of Information Act specifically includes an exception for materials which, if produced, would "interfere with enforcement proceedings," the Act does not impose such a limitation on the broad scope of section 552.108." Id. at 925.