 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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March 5, 2003 Ms. Tamara Armstrong
OR2003-1417 Dear Ms. Armstrong: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 177469. The Travis County Sheriff's Office (the "sheriff") received a request for information relating to (1) calls to a particular street address during a specified time interval, (2) calls placed by the requestor, and (3) an incident involving the requestor, her former spouse, and a third named individual. You claim that the requested information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted. Section 552.101 of the Government Code excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information that another statute makes confidential. You raise section 552.101 in conjunction with section 261.201 of the Family Code. Chapter 261 of the Family Code protects information relating to reports and investigations of alleged or suspected child abuse or neglect. Section 261.201 provides in part: (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Fam. Code § 261.201(a). We find that the information contained in report number 020007985 consists of files, reports, records, communications, and working papers used or developed in an investigation made under chapter 261 of the Family Code. See also Open Records Decision No. 440 at 2 (1986) (construing predecessor statute). You do not inform this office of any rule adopted by the sheriff that would allow the release of this information in this instance. We therefore assume that no such rule exists. Given that assumption, we conclude that report number 020007985 is excepted from disclosure in its entirety under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code as information made confidential by law.(1) Section 552.108(a)(2) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . 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.[.]" A governmental body that claims an exception to disclosure under section 552.108 must reasonably explain, if the requested information does not supply an explanation on its face, how and why section 552.108 is applicable to the information. See Gov't Code § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). Section 552.108(a)(2) is applicable only if the information in question relates to a concluded case that did not result in a conviction or deferred adjudication. You state that the other six submitted incident reports relate to cases that were closed as being "cleared, unfounded" or insufficient for purposes of further prosecution. Based on your representations and our review of the information in question, we agree that section 552.108(a)(2) is applicable to report numbers 020008999, 020009002, 020009930, 020011457, 020011880, and 020012806. Section 552.108 does not except from disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). Section 552.108(c) refers to the basic front-page information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177, 186-87 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). See Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). The sheriff must release basic information under section 552.108(c), even if the information does not literally appear on the front page of an offense or arrest report. Front-page information under Houston Chronicle includes a detailed description of the offense. In this instance, however, some of the information that normally would be public under section 552.108(c) and Houston Chronicle is protected by common-law privacy under section 552.101 of the Government Code. See Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).(2) We have marked information in report numbers 020008999 and 020009002 that is private under section 552.101 and must not be released. Otherwise, the sheriff must release basic information with regard to report numbers 020008999, 020009002, 020009930, 020011457, 020011880, and 020012806. The sheriff may withhold the remaining contents of those six reports under section 552.108(a)(2). In summary, the sheriff must withhold report number 020007985 in its entirety under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. The sheriff may withhold report numbers 020008999, 020009002, 020009930, 020011457, 020011880, and 020012806 under section 552.108(a)(2), with the exception of basic information. The sheriff must release basic information with regard to those six reports in accordance with section 552.108(c), except for the marked information in report numbers 020008999 and 020009002. The marked information in those two reports is protected by common-law privacy under section 552.101 and must not be released. 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 Dep't of Pub. 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, James W. Morris, III
c: Ms. Shawn Harty
Footnotes 1. We note that a parent or other legal representative of a victim of alleged child abuse or neglect may be entitled to obtain portions of the requested information from the Texas Department of Protective and Regulatory Services. See Fam. Code § 261.201(g). 2. Common-law privacy protects the types of information held to be intimate or embarrassing in Industrial Foundation. See 540 S.W.2d at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has since concluded that other types of information also are private under section 552.101. See, e.g., Open Records Decision Nos. 659 at 4-5 (1999), 470 at 4 (1987), 455 at 9 (1987), 343 at 1-2 (1982). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |