April 7, 2008

Mr. Ron G. MacFarlane, Jr.

Dealey, Zimmermann, Clark, Malouf, & MacFarlane, P.C.

3131 Turtle Creek Boulevard,Suite 1201

Dallas, Texas 75219

OR2008-04629

Dear Mr. MacFarlane:

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# 306732.

The City of Cedar Hill (the "city"), which you represent, received a request for several categories of information pertaining to a specified address. You claim that the requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. ⁽¹⁾

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 made confidential by other statutes. You contend that a portion of the submitted information contained in Exhibit C is made confidential under section 261.201 of the Family Code, which provides in pertinent part:

(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.

. . .

(h) This section does not apply to an investigation of child abuse or neglect in a home or facility regulated under Chapter 42, Human Resources Code.

Fam. Code § 261.201(a), (h). However, we note that section 261.201 does not apply to an investigation of child abuse or neglect in a home or facility regulated under chapter 42 of the Human Resources Code. See id. § 261.201(h). Upon review, we agree that a portion of Exhibit C, which we have marked, consists of files, reports, records, communications, or working papers used or developed in an investigation under chapter 261. 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, this information is confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). Accordingly, the city must withhold the information we have marked under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code.

You also raise section 552.101 in conjunction with section 58.007 of the Family Code. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. For purposes of section 58.007, "child" means a person who is ten years of age or older and under seventeen years of age at the time of the reported conduct. See Fam. Code § 51.02(2). The relevant language of 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). We note that section 58.007 is not applicable to information that relates to a juvenile as a complainant, victim, witness, or other involved party and not as a suspect or offender. After reviewing the submitted information, we find that some of the submitted information pertains to juvenile runaways, conduct which is within the scope of section 58.007. See id. § 51.03(a)(3) (defining "conduct indicating a need for supervision" to include "the voluntary absence of a child from his home without the consent of his parent or guardian for a substantial length of time or without intent to return"). Further, the incidents at issue occurred after September 1, 1997. In addition, none of the exceptions in section 58.007 appear to apply. Therefore, the city must withhold the information we have marked in Exhibit C under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code.

Next, you state that portions of the remaining information are confidential under section 552.101 in conjunction with chapter 772.318 of the Health and Safety Code. Chapter 772 of the Health and Safety Code authorizes the development of local emergency communications districts. Sections 772.118, 772.218 and 772.318 of the Health and Safety Code are applicable to emergency 9-1-1 districts established in accordance with chapter 772. See Open Records Decision No. 649 (1996). These sections make the originating telephone numbers and addresses of 9-1-1 callers that are furnished by a service supplier confidential. Id. at 2. Section 772.318 applies to an emergency communication district for a county with a population of more than 20,000. We understand that the city is part of an emergency communication district established under section 772.318 of the Health and Safety Code. Thus, to the extent that the telephone numbers and addresses in Exhibit D were provided by a 9-1-1 service supplier, they must be withheld under section 552.101 of the Government Code in conjunction with section 772.318 of the Health and Safety Code; however, if this information was not provided by a 9-1-1 service supplier to the emergency communication district, this information may not be withheld under section 552.101 of the Government Code in conjunction with section 772.318 of the Health and Safety Code. ⁽²⁾

Section 552.101 also encompasses criminal history record information ("CHRI") generated by the National Crime Information Center or by the Texas Crime Information Center. Title28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No.565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that DPS maintains, except that DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090 -. 127. Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. We note that section 411.083 does not apply to active warrant information. See id. § 411.081(b) (police department allowed to disclose information pertaining to person's current involvement in the criminal justice system). Therefore, the city must withhold the information we have marked in Exhibit D under section 552.101 in conjunction with section 411.083.

Section 552.101 also encompasses the doctrine of common-law privacy and excepts from disclosure private facts about an individual. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). Information is excepted from required public disclosure by a common-law right of privacy if the information (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. Id.

In Open Records Decision No. 393 (1983), this office concluded that generally only that information which either identifies or tends to identify a victim of sexual assault or other sex-related offense may be withheld under common-law privacy; however, because the identifying information was inextricably intertwined with other releasable information, the governmental body was required to withhold the entire report. Open Records Decision No 393 at 2 (1983); see Open Records Decision No. 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 and public did not have a legitimate interest in such information); Open Records Decision No. 440 (1986) (detailed descriptions of serious sexual offenses must be withheld). In this instance, a portion of the information in Exhibit B concerns an alleged sexual offense, and the requestor knows the alleged victim's identity. We believe that under these circumstances, withholding only identifying information from the requestor would not preserve the victim's common-law right to privacy. We therefore conclude that the city must withhold all of the records of the alleged sexual offense, which we have marked, under section 552.101 in conjunction with common-law privacy.

Common-law privacy also protects the specific types of information that are held to be intimate or embarrassing in Industrial Foundation. See 540 S.W.2d at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). In addition, this office has found that the following types of information are excepted from required public disclosure under common-law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps); personal financial information not relating to the financial transaction between an individual and a governmental body, see Open Records Decision Nos. 600 (1992), 545 (1990); and identities of victims of sexual abuse, see Open Records Decision Nos. 440 (1986),393 (1983), 339 (1982). We have marked portions of the remaining information that must also be withheld from the requestor under section 552.101 in conjunction with common-law privacy.

You also raise section 552.108 of the Government Code for the remaining information contained in Exhibit B. Section 552.108 excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). A governmental body that claims an exception to disclosure under section 552.108 must reasonably explain how and why this exception is applicable to the information that the governmental body seeks to withhold. See id. §§ 552.108(a)(1), .301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). You state that the information at issue relates to pending criminal investigations. Based on your representation and our review, we determine that the release of this information would interfere with the detection, investigation, or prosecution of crime. 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., 536 S.W.2d 559 (Tex. 1976) (per curiam) (court delineates law enforcement interests that are present in active cases).

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. Thus, with the exception of the basic page offense and arrest information, you may withhold the remaining information in Exhibit B from disclosure based on section 552.108(a)(1).

We note that some of the remaining submitted information is subject to section 552.130 of the Government Code. ⁽³⁾ Section 552.130 provides that information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency is excepted from public release. Gov't Code § 552.130(a)(1), (2). Thus, the city must withhold the information we have marked under section 552.130.

In summary, the city must withhold the information we have marked in Exhibit C under section 552.101 of the Government Code in conjunction with sections 261.201 and 58.007 of the Family Code. To the extent that the telephone numbers and addresses in Exhibit D were provided by a 9-1-1 service supplier, they must be withheld under section 552.101 of the Government Code in conjunction with section 772.318 of the Health and Safety Code. The city must also withhold the information we have marked in Exhibit D under federal law and chapter 411 of the Government Code. The city must withhold all of the information in Exhibit B pertaining to the alleged sexual offense, which we have marked, under section 552.101 of the Government Code in conjunction with common-law privacy as well as the portions of the remaining information we have marked under section 552.101 and common-law privacy. With the exception of the basic front page offense and arrest information, the city may withhold the remaining information in Exhibit B from disclosure based on section 552.108(a)(1). The city must withhold the information we have marked under section 552.130. The remaining submitted information must be released. ⁽⁴⁾

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,

Paige Savoie

Assistant Attorney General

Open Records Division

PS/ma

Ref: ID# 306732

Enc. Submitted documents

c: Mr. John R. Howie

Howie Law Firm, P.C.

11551 Forest Central Drive, Suite 300

Dallas, Texas 75243

(w/o enclosures)

Footnotes

1. This letter ruling assumes that the submitted representative sample of information is truly representative of the requested information as a whole. This ruling neither reaches nor authorizes the city to withhold any information that is substantially different from the submitted information. See Gov't Code §§ 552.301(e)(1)(D), .302; Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).

2. As our ruling for this information is dispositive, we need not address your argument under section 771.061 of the Health and Safety Code.

3. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

4. We note that the information being released contains social security numbers. 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 office under the Act. Gov't Code § 552.147(b).

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