 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 25, 2010 Ms. Amie Hajovsky Assistant City Attorney City of San Angelo P.O. Box 1751 San Angelo, Texas 76902 OR2010-01106 Dear Ms. Hajovsky: 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# 367961. The San Angelo Police Department (the "department") received a request for any police reports in which the requestor's client or client's son are mentioned. 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. Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses other statutes that make information confidential, such as 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, which provides in pertinent part 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 Subchapters B, D, and E. Fam. Code § 58.007(c). Section 58.007(c) 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, 51.03 (defining "delinquent conduct" and "conduct indicating a need for supervision" for purposes of section 58.007). We have reviewed the submitted information and find that no portion of it identifies a juvenile suspect or offender. Accordingly, we find that section 58.007(c) of the Family Code is not applicable to the submitted information, and the department may not withhold it under section 552.101 of the Government Code on that basis. Section 552.101 also encompasses section 261.201 of the Family Code, which provides as follows: (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). You assert the submitted report was used or developed in an investigation under chapter 261 of the Family Code. See id. § 261.201 (defining "abuse" for purposes of Fam. Code ch. 261.); 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). However, the requestor is the attorney ad litem for the parent of the child victim, and the parent is not alleged to have committed the suspected abuse. In this instance, the department may not use section 261.201(a) to withhold this report from this requestor. Id. § 261.201(k). However, section 261.201(l)(3) requires that before a parent may inspect such records, the identity of the reporting party must be withheld. Id. § 261.201(l)(3). Thus, the department must withhold the reporting party's identity, which we have marked, under section 552.101 in conjunction with section 261.201(l)(3). Additionally, section 261.201(l)(2) states that any information that is excepted from required disclosure under the Act or other law may still be withheld from disclosure. Id. § 261.201(l)(2). Accordingly, we will address whether any of the submitted information is excepted from disclosure under section 552.101 of the Government Code in conjunction with common-law privacy. Section 552.101 also encompasses the common-law right of privacy, which protects information that is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. See id. at 681-82. The types of information considered intimate or 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. See id. at 683. However, as previously noted, the requestor is the attorney ad litem representing the parent of the minor child whose private information is at issue and, therefore, has a special right of access to information that would ordinarily be withheld to protect the minor's privacy interests. See Gov't Code § 552.023(b) (governmental body may not deny access to person or person's representative to whom information relates on grounds that information is considered confidential under privacy principles). Therefore, the submitted information may not be withheld on the basis of common-law privacy. In summary, the department must withhold the identity of the reporting party, which we have marked, pursuant to section 261.201(l)(3). The remaining information must be released to this requestor. (1) 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, Lauren J. Holmsley Assistant Attorney General Open Records Division LJH/jb Ref: ID# 367961 Enc. Submitted documents c: Requestor (w/o enclosures)
1. We note the information being released contains confidential information regarding the alleged child
victim to which the requestor has a right of access as the attorney representing the child's parent. See Fam.
Code § 261.201(k). If the department receives another request for this particular information from a different
requestor, then the department should again seek a decision from this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |