 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
March 3, 2009 Ms. Luz E. Sandoval-Walker Assistant City Attorney The City of El Paso 2 Civic Center Plaza, 9th Floor El Paso, Texas 79901-1196 OR2009-02722 Dear Ms. Sandoval-Walker: 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# 336814. The El Paso Police Department (the "department") received a request for a specified incident report. You claim that the submitted report 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 made confidential by other statutes. You contend that the submitted report 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). You state that the submitted information was used or developed in an investigation of alleged child abuse. However, 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). We note that the incident at issue allegedly occurred at a child care facility that is regulated by the Texas Department of Family and Protective Services under chapter 42 of the Human Resources Code. We, therefore, find that section 261.201 is not applicable to the investigation at issue, and we determine that the department may not withhold the submitted report under section 552.101 on that basis. You also argue that the submitted report is protected under the doctrine of common-law privacy. Section 552.101 of the Government Code also encompasses common-law privacy, which protects information that (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 type 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. We find that the identifying information of the minor victim, which we have marked, is generally subject to common-law privacy. However, none of the remaining information in the submitted report is intimate or embarrassing and of no legitimate public interest. Thus, none of the remaining information in the submitted report is subject to common-law privacy and it may not be withheld on that basis. We note, however, that the requestor may be the authorized representative of the minor victim. In the event that the requestor is the minor victim's authorized representative, then she has a special right of access to his private information under section 552.023 of the Government Code. See Gov't Code § 552.023(a). (1) If the requestor has a right of access under section 552.023, then the department may not withhold the information we have marked in the submitted report on privacy grounds under section 552.101 and must release the entire report to the requestor. See Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself). If the requestor is not the minor victim's authorized representative, then the department must withhold the information we have marked in the submitted report under section 552.101 in conjunction with common-law privacy and must release the remaining information to the requestor. This letter ruling is limited to the particular information 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 information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General at (512) 475-2497. Sincerely, Laura E. Ream Assistant Attorney General Open Records Division LER/eb Ref: ID# 336814 Enc. Submitted documents cc: Requestor (w/o enclosures)
1. Section 552.023(a) provides that "[a] person or a person's authorized representative has a special right
of access, beyond the right of the general public, to information held by a governmental body that relates to the
person and that is protected from public disclosure by laws intended to protect that person's privacy interests."
Gov't Code § 552.023(a). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |