 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 9, 2007 Ms. Meredith Ladd OR2007-01756 Dear Ms. Ladd: 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# 271134. The Town of Flower Mound (the "town"), which you represent, received a request for six specified police reports. You claim that the requested information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception 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." (1) Gov't Code § 552.101. Section 552.101 encompasses section 261.201(a) of the Family Code. Section 261.201(a) provides: (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. Fam. Code § 261.201(a). Because the incident report we have marked consists of files, reports, records, communications, or working papers used or developed in an investigation under chapter 261, this information is within the scope of section 261.201 of the Family Code. You do not indicate that the town has adopted a rule that governs the release of this type of information. Therefore, we assume that no such regulation exists. Given that assumption, the marked information is confidential pursuant to section 261.201 of the Family Code. (2) See Open Records Decision No. 440 at 2 (1986) (predecessor statute). Accordingly, the town must withhold this information from disclosure under section 552.101 of the Government Code as information made confidential by law. You claim that the remaining information is excepted from disclosure under section 552.108 of the Government Code. Section 552.108 provides in pertinent part 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 [required public disclosure] if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime; (2) it is information that the deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.] (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from [required public disclosure] if: (1) release of the internal record or notation would interfere with law enforcement or prosecution; (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.] (c) This section does not except [from public disclosure] information that is basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(a)(1)-(2), (b)(1)-(2), (c). Generally speaking, subsections 552.108(a)(1) and 552.108(b)(1) are mutually exclusive of subsections 552.108(a)(2) and 552.108(b)(2). Subsection 552.108(a)(1) protects information, the release of which would interfere with a particular pending criminal investigation or prosecution, while subsection 552.108(b)(1) encompasses internal law enforcement and prosecution records, the release of which would interfere with on-going law enforcement and prosecution efforts in general. In contrast, subsections 552.108(a)(2) and (b)(2) protect information that relates to a concluded criminal investigation or prosecution that did not result in conviction or deferred adjudication. You claim that incident report number 06-33200 is excepted from disclosure under subsections 552.108(a)(1), (a)(2), (b)(1), and (b)(2), including it in both Exhibits B-1 and B-2. You state that this report pertains to an investigation that did not result in conviction or deferred adjudication. You also state that this report pertains to a pending prosecution. Accordingly, we find that you have failed to reasonably explain how section 552.108 applies to this incident report. Therefore, the town may not withhold incident report number 06-33200 under section 552.108. You inform us that the remaining incident reports in Exhibit B-2 relate to pending criminal prosecutions. Based on this representation, we find that you have established that release of the incident reports we have marked in Exhibit B-2 would interfere with the detection, investigation, or prosecution of crime and are therefore subject to section 552.108(a)(1). (3) See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases). You inform us that the remaining incident reports in Exhibit B-1 pertain to criminal investigations that concluded in results other than conviction or deferred adjudication. The incident reports we have marked in Exhibit B-1 are subject to section 552.108(a)(2). (4) However, 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). Basic information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 185; see also Open Records Decision No. 127 (1976) (summarizing types of information made public by Houston Chronicle). Accordingly, with the exception of basic information, the town may withhold the marked incident reports under section 552.108 of the Government Code. Finally, we note that the submitted information includes an arrestee's social security number. Section 552.147 of the Government Code provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. (5) Gov't Code § 552.147. The town must withhold the arrestee's social security number under section 552.147. In summary, the town must withhold the incident report we have marked under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. The town must release incident report number 06-33200. With the exception of basic information, the town may withhold the incident reports we have marked under section 552.108 of the Government Code. The town must withhold the arrestee's social security number under section 552.147 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, 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); 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 Office of the Attorney General 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. 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, Tamara L. Harswick Assistant Attorney General Open Records Division TLH/jww Ref: ID# 271134 Enc. Submitted documents c: Ms. Phandeluys A. Lin 1205 Shamrock Drive Flower Mound, Texas 75028 (w/o enclosures) Footnotes1. The Office of the Attorney General will raise a mandatory exception like section 552.101 on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). 2. 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 right to review that file. See Fam. Code § 261.201(g).
3. As our ruling is dispositive for this information, we need not address your claim under
section 552.108(b)(1) of the Government Code.
4. As our ruling is dispositive for this information, we need not address your claim under
section 552.108(b)(2) of the Government Code.
5. We note that section 552.147(b) of the Government Code authorizes a governmental body to redact
a living person's social security number from public release without the necessity of requesting a decision from
this officer under the Act.
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