 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 3, 2007 Mr. Ernesto Rodriguez OR2007-15828 Dear Mr. Rodriguez: 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# 296156. The El Paso Police Department (the "department") received three separate requests from the same requestor for three specified incident reports. You claim that the requested 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. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information protected by other statutes. 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 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, audiotapes, videotapes, 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 indicate that the submitted information was used or developed in an investigation of abuse under chapter 261 of the Family Code. See id. § 261.001 (defining "abuse" for purposes of chapter 261 of the Family Code); see also id. § 101.003(a) (defining "child" for purposes of this section as person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes). Based on our review, we find that incident report numbers 03-050049 and 03-044164 are within the scope of section 261.201 of the Family Code. You do not state that the department has adopted a rule that governs the release of this type of information. Therefore, incident report numbers 03-050049 and 03-044164 are confidential pursuant to section 261.201 of the Family Code and must be withheld under section 552.101 of the Government Code. However, upon review of the remaining submitted incident report, we find that you have failed to demonstrate that section 261.201 of the Family Code is applicable. Therefore, the department may not withhold the remaining submitted incident report under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. Section 552.101 also encompasses information protected by section 58.007 of the Family Code, which you assert is applicable to some of the submitted information. Law enforcement records involving juvenile offenders and relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. Section 58.007(c) reads as follows: (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). For purposes of section 58.007, "child" means a person who is ten years of age or older and under seventeen years of age. See Fam. Code § 51.02(2). We note, however, that section 58.007 is not applicable to information that relates to a juvenile as a complainant, victim, witness, or other involved party; it is only applicable to juveniles listed as suspects or offenders. See id. § 58.007. In this instance, the remaining submitted report does not identify a juvenile as a suspect or offender; therefore, the department has failed to demonstrate that the remaining submitted report is a juvenile law enforcement record for section 58.007 purposes. Accordingly, none of the submitted information may be withheld under section 552.101 on this basis. Section 552.101 also encompasses the common-law right of privacy, which protects information if it (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The types of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. Generally, only the information that either identifies or tends to identify a victim of a sexual assault or another sex-related offense may be withheld under common-law privacy. However, a governmental body is required to withhold an entire report when identifying information is inextricably intertwined with other releasable information or when the requestor knows the identity of the alleged victim. See Open Records Decision Nos. 393 (1983), 339 (1982); see also Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied) (identity of witnesses to and victims of sexual harassment was highly intimate or embarrassing information that was not a matter of legitimate public interest); Open Records Decision No. 440 (1986)(detailed descriptions of serious sexual offenses must be withheld). In this instance, incident report number 03-219198 is related to an alleged sexual offense, and the requestor knows the identity of the alleged victim. Under these circumstances, withholding only the victim's identifying information from the requestor would not preserve the victim's common-law right to privacy. We therefore conclude that the department must withhold report number 03-219198 in its entirety under section 552.101 of the Government Code in conjunction with common-law privacy. In summary, the department must withhold incident report numbers 03-050049 and 03-044164 under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. The department must also withhold incident report number 03-219198 under section 552.101 in conjunction with common-law privacy. 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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, Allan D. Meesey Assistant Attorney General Open Records Division ADM/eeg Ref: ID# 296156 Enc. Submitted documents c: Mr. Randy Gramblim 1200 Cerrito Alegre El Paso, Texas 79912 (w/o enclosures)
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