 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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May 29, 2007 Ms. Rebecca Brewer OR2007-06624 Dear Ms. Brewer: 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#279704. The City of Wylie (the "city"), which you represent, received a request for information pertaining to two specified addresses and three named individuals. You claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. You inform us that the submitted information was the subject of a previous request for information in response to which this office issued Open Records Letter No. 2006-12870 (2006). See Gov't Code § 552.301(f); Open Records Decision No. 673 (2001) (setting forth the four criteria for a "previous determination"). We note, however, that the circumstances of the request have changed. In this instance, the requestor is a court appointed evaluator and may have a right to access portions of the submitted information. Therefore, as the circumstances have changed since the issuance of Open Records Letter No. 2006-12870, we conclude that the city may not rely on that ruling as a previous determination with regard to the instant request. See id. However, we will address the applicability of the exception you claim. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," and encompasses information made confidential by other statutes. Gov't Code § 552.101. Section 261.201(a) of the Family Code 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 [the Family 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 [chapter 261 of the Family Code] 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 [chapter 261 of the Family Code] or in providing services as a result of an investigation. Fam. Code § 261.201(a). The submitted information consists of files, reports, records, communications, or working papers used or developed in an investigation under chapter 261 of the Family Code. See id. § 261.001(1)(E). Thus, the information falls within the scope of section 261.201(a). You have not indicated that the city has adopted a rule that governs the release of this type of information. Therefore, we assume that no such regulation exists. Given that assumption, we find that the requested information is confidential pursuant to section 261.201 of the Family Code and is generally excepted from public disclosure pursuant to section 552.101. However, section 261.201 also provides that information encompassed by subsection (a) may be disclosed "for purposes consistent with [the Family Code] and applicable federal or state law."Id. We note that chapter 411 of the Government Code constitutes "applicable state law" in this instance. Section 411.1285(a) of the Government Code provides that "[a] domestic relations office created under Chapter 203, Family Code, is entitled to obtain from the [Department of Public Safety] criminal history record information that relates to a person who is a subject of a social study under Subchapter D, Chapter 107, Family Code." See Gov't Code § 411.1285(a). (1) Additionally, a district court "may order the preparation of a social study into the circumstances and condition of the child and of the home of any person requesting managing conservatorship or possession of the child." Fam. Code § 107.051(a). In addition, section 411.087(a) of the Government Code provides in pertinent part: (a) [a] person, agency, department, political subdivision, or other entity that is authorized by this subchapter to obtain from the [Department of Public Safety] criminal history record information maintained by the [Department of Public Safety] that relates to another person is authorized to: . . . (2) obtain from any other criminal justice agency in this state criminal history record information maintained by that criminal justice agency that relates to that person. Gov't Code § 411.087(a)(2). We note that "criminal history record information" is defined as "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." See id. § 411.082(2). Thus, the information at issue contains "criminal history record information." However, a domestic relations office that receives criminal history record information from a criminal justice agency pursuant to section 411.087(a)(2) may only receive such information for purposes of conducting a social study under subsection D, chapter 107 of the Family Code. See id. §§ 411.083(c), .087(b); see also Open Records Decision No. 655 (1997) (discussing limitations on release of criminal history record information). Thus, if the requestor in this instance represents a domestic relations office created under chapter 203 of the Family Code, then he is authorized to obtain from the city criminal history record information that relates to a person who is the subject of a social study under chapter 107 of the Family Code pursuant to section 411.087(a)(2) of the Government Code. See Gov't Code §§ 411.083(c), .087(a)(2); see also Fam. Code § 261.201(a). The requestor states, and provides documentation showing, that he has been appointed by the Denton County District Court to "conduct a custody evaluation." If the city determines that the requestor is conducting a social study under chapter 107 of the Family Code and that disclosure of the submitted information is consistent with the Family Code, then the city must make available to the requestor information that shows identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions. See Open Records Decision No. 451 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under the Act). With the exception of this information, the city must withhold the remaining submitted information under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. However, if the city determines that the requestor does not intend to use criminal history record information from the submitted information for the purpose of conducting a social study under chapter 107 or that disclosure of the information is not consistent with the Family Code, the city must withhold the submitted information in its entirety pursuant to section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. See Fam. Code § 261.201(b)-(g) (listing entities authorized to receive 261.201 information); see also Attorney General Opinions DM-353 at 4 n. 6 (1995) (finding interagency transfer of information prohibited where confidentiality statute enumerates specific entities to which release of information is authorized and where potential receiving governmental body is not among statute's enumerated entities), JM-590 at 4-5 (1986); see also Open Records Decision No. 440 at 2 (1986) (construing 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); 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, Holly R. Davis Assistant Attorney General Open Records Division HRD/eeg Ref: ID# 279704 Enc. Submitted documents c: Mr. Steven E. "Jake" Jacobson, LCSW Court Appointed Evaluator CCD Counseling, P.A. 1512 Scripture Denton, Texas 76201 (w/o enclosures) Footnotes1. A "domestic relations office" is defined as "a county office that serves families, county departments, and courts to ensure effective implementation of this title." Fam. Code § 203.001(2).
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