 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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April 13, 2004 Chief Don Hatcher
OR2004-2998 Dear Chief Hatcher: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 199299. The Leander Police Department (the "department") received four requests for police reports concerning child custody and family violence. You claim that the submitted 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 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." Initially, you claim the submitted information is excepted from disclosure based on section 552.101 of the Government Code in conjunction with common law privacy. 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 Comm. for Freedom of the Press, 489 U.S. 749 (1989). In this instance, the requestor asks for information relating to several specific incidents. The requestor does not ask the department to compile the criminal history of an individual. Therefore, we do not believe that an individual's right to privacy has been implicated, and we conclude that you may not withhold any of the submitted information under common law privacy as encompassed by section 552.101 of the Government Code. Next, we address your claim that the submitted information is excepted from disclosure under section 552.101 in conjunction with section 261.201 of the Family Code. Section 261.201(a) provides as follows: (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, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Because Case Reports #211004, #210538, and #300296 relate to allegations of child abuse, these Case Reports are within the scope of section 261.201 of the Family Code. You have not indicated that the department has adopted a rule that governs the release of this type of information. Therefore, we assume that no such regulation exists. Given that assumption, these Case Reports are confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). Accordingly, the department must withhold Case Reports #211004, #210538, and #300296 from disclosure under section 552.101 of the Government Code as information made confidential by law.(1) The submitted Call for Service documents do not relate to child abuse or neglect and thus are not confidential under section 261.201 of the Family Code. We now address the information contained within the Call for Service documents under your remaining arguments against disclosure. First, you claim that the remaining information at issue is confidential under section 58.007 of the Family Code. Section 552.101 encompasses confidentiality provisions such as section 58.007. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007; however, the Calls for Service do not involve juvenile conduct. Therefore, this information is not confidential under section 58.007(c) of the Family Code or excepted from disclosure under section 552.101 of the Government Code. You also claim that the remaining information at issue is excepted from release under section 552.108(a)(1) of the Government Code. Section 552.108 provides as follows: (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if: (1) release of the information would interfere with the detection, investigation or prosecution of crime; . . . . (c)This section does not except from the requirements of Section 552.021 information that is basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108. Generally, a governmental body claiming section 552.108(a)(1) must reasonably explain how and why the release of the requested information would interfere with law enforcement. See Gov't Code §§ 552.108(a)(1), .301(e)(1)(a); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You have not demonstrated that the remaining information at issue pertains to an ongoing criminal investigation or prosecution, nor have you explained how its release would interfere in some way with the detection, investigation, or prosecution of crime. See Gov't Code § 552.108(a)(1). Thus, the Call for Service documents are not excepted from disclosure under section 552.108(a)(1). Call for Service #28914 does contain a Texas driver's license number. Section 552.130 provides in relevant part: (a) Information is excepted from the requirement of Section 552.021 if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or] (2) a motor vehicle title or registration issued by an agency of this state[.] You must withhold the marked Texas driver's license number under section 552.130. In summary, you must withhold Case Reports #211004, #210538, and #300296 pursuant to section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. You must withhold the driver's license number marked in Call for Service #28914 under section 552.130 of the Government Code. The remaining information must be released.(2) 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, W. David Floyd
c: William and Cynthia Robinson
Footnotes 1. We note, however, that if the Texas Department of Family and Protective Services has created a file on this alleged abuse, the child's parent(s) may have the statutory right to review that file. See Fam. Code § 261.201(g); Act of June 2, 2003, 78th Leg., R.S., ch. 198, § 1.27, 2003 Tex. Sess. Law Serv. 611, 641 ("A reference in law to the Department of Protective and Regulatory Service means the Department of Family and Protective Services."). 2. Because there are no social security numbers present in the information which must be released, we do not address your claim that social security numbers are excepted under section 552.101 of the Government Code. |