June 3, 2005

Mr. Bryan P. Neal
Thompson & Knight, L.L.P.
1700 Pacific Avenue, Suite 3300
Dallas, Texas 75201-4693

OR2005-04877

Dear Mr. Neal:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 226258.

The Allen Independent School District (the "district"), which you represent, received a request for information pertaining to "nap, quiet or rest time" polices of the district, as well as other information pertaining to the requestor's client, such as her personnel file. You state that the district does not have some of the requested information and that some of the requested information is being provided to the requestor.⁽¹⁾ You also state that the district does not object to the release of the remaining requested information, but indicate that the information may be excepted from disclosure under section 552.101 of the Government Code. We 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." This section encompasses information protected by other statutes. Section 261.201(a) of the Family Code provides as follows:

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.

Fam. Code § 261.201(a). You inform us that the submitted documents were created by the Child Protective Services Division ("CPS") of the Texas Department of Family and Protective Services (the "department") in response to an allegation of child abuse and negligent supervision at a district school. You also inform us that CPS provided you these documents pursuant to section 261.406 of the Family Code. See id. § 261.406 (b) (department must send written report of its investigation to school principal or director, unless principal or director is alleged to have committed the abuse or neglect). Based on these representations and our review of the documents at issue, we conclude that the submitted information consists of files, reports, records, communications, or working papers used or developed in an investigation under chapter 261, and thus it is within the scope of section 261.201 of the Family Code. You state that the district has not adopted a rule allowing for the release of the information at issue. Based on your representations, we conclude that the submitted information is confidential pursuant to section 261.201 of the Family Code, and the district must withhold it under section 552.101 of the Government Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute).

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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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); Tex. 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 L. Coggeshall
Assistant Attorney General
Open Records Division
JLC/seg
Ref: ID# 226258
Enc. Submitted documents

c: Ms. Marianne S. Dwight
Brim, Arnett, Soifer, Robinett, Hanner & Conners, P.C.
2525 Wallingwood Drive, Building 14
Austin, Texas 78746
(w/o enclosures)

Footnotes

1. We note the Act does not require a governmental body to disclose information that did not exist when the request for information was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex.App.-San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986).