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Office of the Attorney General - State of Texas John Cornyn |
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April 30, 2002 Ms. Laura Garza Jimenez
OR2002-2231 Dear Ms. Jimenez: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162248. The Nueces County Attorney's Office (the "county") received a request for the dates that the requestor's son has been incarcerated in the county jail, the FBISD Penitentiary, and the county juvenile jail, to include the time frame "when Assistant DA Sales singled my son out for the electronic leg-irons." On February 25, the county sought clarification of the portion of the request regarding electronic leg irons. See Gov't Code § 552.222 (providing that if request for information is unclear, governmental body may ask requestor to clarify request). The requestor responded that he is referring to "the time when Assistant DA Jim Sales put my son on a monitor." You advise that you are releasing information responsive to the first part of the request, and that the county has no information related to the FBISD Penitentiary.(1) You also have advised the requestor of the time period when the requestor's son was placed on electronic monitoring. You claim that the remaining requested information is excepted from disclosure under section 552.101 of the Government Code. The requestor has submitted arguments regarding why the information should be released. See Gov't Code § 552.304 (permitting member of the public to submit to attorney general reasons why requested information should or should not be released). We have considered the exception you claim and the arguments of the requestor, and have reviewed the submitted information. Section 552.101 protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Prior to its repeal by the Seventy-fourth Legislature, section 51.14 of the Family Code provided, in relevant part, as follows: (a) Except as provided by Subsection (e) of this section, or by Article 15.27, Code of Criminal Procedure, all files and records of a juvenile court, a clerk of court, or a prosecuting attorney relating to a child who is a party to a proceeding under this title are open to inspection only by: (1) the judge, probation officers, and professional staff or consultants of the juvenile court; (2) an attorney for a party to the proceeding; (3) a public or private agency or institution providing supervision of the child by arrangement of the juvenile court, or having custody of the child under juvenile court order; or (4) with leave of juvenile court, any other person, agency, or institution having a legitimate interest in the proceeding or in the work of the court. (b) All files and records of a public or private agency or institution providing supervision of a child by arrangement of the juvenile court or having custody of the child under order of the juvenile court are open to inspection only by: (1) the professional staff or consultants of the agency or institution; (2) the judge, probation officers, and professional staff or consultants of the juvenile court; (3) an attorney for the child; (4) with leave of the juvenile court, any other person, agency, or institution having a legitimate interest in the work of the agency or institution; or (5) the Texas Department of Corrections, the Department of Public Safety, and the Texas Juvenile Probation Commission, for the purpose of maintaining statistical records of recidivism, and for diagnosis and classification. . . . . (d) Except as provided by Article 15.27, Code of Criminal Procedure, and except for files and records relating to a charge for which a child is transferred under Section 54.02 of this code to a criminal court for prosecution, the law-enforcement files and records are not open to public inspection nor may their contents be disclosed to the public, but inspection of the files and records is permitted by: (1) a juvenile court having the child before it in any proceeding; (2) an attorney for a party to the proceeding; and (3) law-enforcement officers when necessary for the discharge of their official duties. Despite the repeal of section 51.14, law enforcement records pertaining to juvenile conduct that occurred prior to the effective date of the repeal continue to be confidential under that section.(2) Because the submitted record pertains to incidents of juvenile conduct that occurred prior to January 1, 1996, we conclude that the record is governed by the various subsections of section 51.14 of the Family Code. You indicate that none of the exceptions in former section 51.14 apply. Therefore, the record is confidential under former section 51.14(d) of the Family Code and must be withheld from disclosure pursuant to section 552.101 of the Government Code. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Kristen Bates
c: Mr. Michael C. F. White
Footnotes 1. The requestor disputes the county's contention that it has no documentation relating to FBISD Penitentiary. Thus, we are faced with a factual dispute between the county and the requestor regarding whether the county has certain information in its possession. We cannot resolve disputes of fact in the open records process, and therefore, we must rely on the representations of the governmental body requesting our opinion. Open Records Decision Nos. 554 (1990), 552 (1990). Based on the your representation, we conclude that the county does not possess information responsive to this part of the request. The Public Information Act does not require a governmental body to disclose information that did not exist at the time the request was received. Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986). 2. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 106, 1995 Tex. Sess. Law Serv. 2591 (Vernon). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |