 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
January 6, 2010 Mr. Robert E. Reyna Assistant City Attorney City of San Antonio P.O. Box 839966 San Antonio, Texas 78283 OR2010-00233 Dear Mr. Reyna: 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# 366334 (COSA File No. 2009-4547). The City of San Antonio (the "city") received a request for a specified police report. 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 information you submitted. 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. You raise section 552.101 in conjunction with section 261.201 of the Family Code, which provides in part: (a) [T]he following information is confidential, is not subject to public release under [the Act] 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. . . . (k) Notwithstanding Subsection (a), an investigating agency, other than the department or the Texas Youth Commission, on request, shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect, or to the child if the child is at least 18 years of age, information concerning the reported abuse or neglect that would otherwise be confidential under this section. The investigating agency shall withhold information under this subsection if the parent, managing conservator, or other legal representative of the child requesting the information is alleged to have committed the abuse or neglect. (l) Before a child or a parent, managing conservator, or other legal representative of a child may inspect or copy a record or file concerning the child under Subsection (k), the custodian of the record or file must redact: (1) any personally identifiable information about a victim or witness under 18 years of age unless that victim or witness is: (A) the child who is the subject of the report; or (B) another child of the parent, managing conservator, or other legal representative requesting the information; (2) any information that is excepted from required disclosure under [the Act], or other law; and (3) the identity of the person who made the report. Fam. Code § 261.201(a), (k)-(l). We find that the submitted information was used or developed in an investigation of alleged or suspected child abuse under chapter 261 of the Family Code. See id. § 261.001(1)(E) (defining "abuse," for purposes of Fam. Code ch. 261, as including offense of aggravated sexual assault under Penal Code § 22.021). We therefore conclude that the submitted information is generally confidential under section 261.201(a) of the Family Code. See Open Records Decision No. 440 at 2 (1986) (addressing predecessor statute). In this instance, however, the submitted information identifies the requestor as a guardian of the child who is listed as the victim of the alleged or suspected abuse. Moreover, the requestor is not alleged to have committed the abuse. Therefore, the submitted information may not be withheld from this requestor on the basis of section 261.201(a). See Fam. Code § 261.201(k). Nevertheless, section 261.201(l)(2) provides that information subject to any other exception to disclosure under the Act or other law must be redacted. See id. § 261.201(l)(2). Section 552.101 of the Government Code also encompasses section 58.007 of the Family Code, which provides in part: (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 Subchapters B, D, and E. Id. § 58.007(c); see id. § 51.03(a)-(b) (defining "delinquent conduct" and "conduct indicating need for supervision" for purposes of Fam. Code tit. 3). Section 58.007(c) is applicable to records of juvenile conduct that occurred on or after September 1, 1997. See Act of June 2, 1997, 75th Leg., R.S., ch. 1086, §§ 20, 55(a), 1997 Tex. Gen. Laws 4179, 4187, 4199; Open Records Decision No. 644 (1996). The juvenile must have been at least 10 years old and less than 17 years of age when the conduct occurred. See Fam. Code § 51.02(2) (defining "child" for purposes of Fam. Code tit. 3). Section 58.007(c) 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. We find that the submitted information is related to a juvenile offense that occurred after September 1, 1997. We therefore conclude that the submitted information must be withheld from the requestor in its entirety under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. (1) As we are able to make this determination, we need not address the other exception you claim. 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, toll free, at (888) 672-6787. Sincerely, James W. Morris, III Assistant Attorney General Open Records Division JWM/cc Ref: ID# 366334 Enc: Submitted documents c: Requestor (w/o enclosures) Footnotes1. We note that a parent or legal representative of a child who is the subject of reported abuse or neglect may have a right of access to certain abuse and neglect records maintained by the Texas Department of Family and Protective Services ("DFPS"). Section 261.201(g) of the Family Code provides that DFPS, upon request and subject to its own rules, shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect information concerning the reported abuse or neglect that would otherwise be confidential under this section if [DFPS] has edited the information to protect the confidentiality of the identity of the person who made the report and any other person whose life or safety may be endangered by the disclosure. See Fam. Code § 261.201(g).
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |