 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 30, 2004 Ms. Loren B. Smith
OR2004-2504 Dear Ms. Smith: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 198659. The City of Friendswood (the "city"), which you represent, received a request for a "Police Record Check" for a named individual. You claim that the requested information is excepted from disclosure pursuant to section 552.101 of the Government Code. We have considered the exception you claim and have reviewed the submitted information. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. See Gov't Code § 552.101. Section 552.101 encompasses information that is protected from disclosure by the common-law right to privacy. Information is protected from disclosure under the common-law right to privacy when (1) it is highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities and (2) there is no legitimate public interest in its disclosure. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Where an individual's criminal history information has been compiled by a governmental entity, the information takes on a character that implicates the individual's right to privacy. See United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). In this instance, the requestor seeks copies of unspecified criminal history record information in which a named individual is identified. Thus, the request requires the city to compile information relating to this individual. Based on the reasoning set out in Reporters Committee, we conclude that such a compilation implicates the named individual's right to privacy to the extent that it includes investigations where the named individual was a suspect, arrestee, or defendant. We note, however, that the requestor has a special right of access to this information pursuant to section 552.023 of the Government Code. Section 552.023 gives a person or a person's authorized representative a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from disclosure by laws intended to protect that person's privacy interests. See Gov't Code § 552.023. Therefore, we find that no portion of the submitted information is protected from disclosure under the common-law right to privacy. Accordingly, we conclude that the city may not withhold any portion of the submitted information under section 552.101 of the Government Code in conjunction with the common-law right to privacy on the basis of the decision in Reporter's Committee. You also claim that the submitted information is excepted from disclosure pursuant to section 552.101 in conjunction with section 58.005 of the Family Code. Section 552.101 also encompasses information that is protected from disclosure by other statutes. Section 58.005 provides in pertinent part: (a) Information obtained for the purpose of diagnosis, examination, evaluation, or treatment or for making a referral for treatment of a child by 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 may be disclosed only to: (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) a governmental agency if the disclosure is required or authorized by law; (5) a person or entity to whom the child is referred for treatment or services if the agency or institution disclosing the information has entered into a written confidentiality agreement with the person or entity regarding the protection of the disclosed information; (6) the Texas Department of Criminal Justice and the Texas Juvenile Probation Commission for the purpose of maintaining statistical records of recidivism and for diagnosis and classification; or (7) with leave of the juvenile court, any other person, agency, or institution having a legitimate interest in the proceeding or in the work of the court. Fam. Code § 58.005(a). You do not explain, nor can we ascertain from our review of the submitted information, how this information constitutes information obtained for the purpose of diagnosis, examination, evaluation, or treatment or for making a referral for treatment of a child by 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. Thus, we find that section 58.005 of the Family Code does not encompass the submitted information and no portion of it may be withheld from the requestor on that basis under section 552.101 of the Government Code. Finally, you claim that the submitted information is excepted from disclosure pursuant to section 552.101 in conjunction with section 58.007 of the Family Code. Section 58.007 provides in pertinent part: (c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B. Fam. Code § 58.007(c). Section 58.007(c) is applicable to records of juvenile conduct that occurred on or after September 1, 1997. See Act of June 2, 1997, 75th Leg., R.S., ch. 1086, §§ 20, 55(a), 1997 Tex. Gen. Laws 4179, 4187, 4199; see also Open Records Decision No. 644 (1996). We note that the juvenile must have been at least ten years of age and less than seventeen years of age when the conduct occurred. See Fam. Code § 51.02(2) (defining "child" for purposes of title 3 of Family Code). Based on our review of your representations and the submitted information we find that portions of the information, which we have marked, are encompassed by section 58.007(c). It does not appear that any exceptions to confidentiality apply in this instance. Accordingly, we conclude that the city must withhold this marked information pursuant to section 552.101 in conjunction with section 58.007(c) of the Family Code. However, we also find that no other portion of the submitted information is so encompassed by section 58.007(c). See id. § 51.03(a)-(b) (defining delinquent conduct and conduct indicating need for supervision). Accordingly, we also conclude that the city may not withhold any other portion of the submitted information under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. In summary, the city must withhold the information that we have marked within the submitted information pursuant to section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. The city must release the remaining submitted information to the requestor. 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, Ronald J. Bounds
c: Sgt. Stephanie R. Law
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