 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 11, 2010 Mr. Robert E. Reyna Assistant City Attorney City of San Antonio P.O. Box 839966 San Antonio, Texas 78283-3966 OR2010-02091 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# 369975 (COSA File No. 2009-4735). The San Antonio Police Department (the "department") received a request for all information pertaining to three specified addresses during specified time periods. You state that the department will release some of the requested information. You claim that the submitted 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. 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 information that other statutes make 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). Upon review, we find that case number 8-0161134 involves juvenile delinquent conduct that occurred after September 1, 1997, so as to fall within the scope of section 58.007(c). See id. § 51.03(a) (defining "delinquent conduct" for purposes of title 3 of the Family Code); see also id. § 51.02(2) (defining "child" as a person who is ten years of age or older and under seventeen years of age at the time of the conduct). Thus, case number 8-0161134 is confidential and must be withheld in its entirety under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. However, we note that section 58.007 is inapplicable to case number 90-335783 because the conduct at issue in that case occurred in 1990. Former section 51.14 of the Family Code is the applicable provision in this instance. Prior to its repeal by the Seventy-Fourth Legislature, section 51.14(d) provided for the confidentiality of juvenile law enforcement records. See Open Records Decision No. 181 (1977) (concluding that former section 51.14(d) of the Family Code excepts police reports which identify juvenile suspects or furnish basis for their identification). Law enforcement records pertaining to juvenile conduct occurring before January 1, 1996 are governed by former section 51.14(d), which was continued in effect for that purpose. Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 100, 1995 Tex. Gen. Laws 2517, 2591. Section 51.14 only applies to records of a "child," which is defined as a person who is ten years of age or older and under seventeen years of age. See Fam. Code § 51.02(2). In this instance, case number 90-335783 consists of a report involving a juvenile engaged in delinquent conduct before January 1, 1996. See id. § 51.03 (defining "delinquent conduct"). Therefore, case number 90-335783 is confidential under former section 51.14 of the Family Code and must be withheld under section 552.101 of the Government Code. We note the remaining reports do not identify any suspects or offenders that are under 17 years of age. Consequently, the remaining information may not be withheld under section 552.101 in conjunction with either section 58.007 or former section 51.14 of the Family Code. Section 552.101 of the Government Code also encompasses section 261.201 of the Family Code, which provides in relevant 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. Id. § 261.201(a). Case number 94-257497 relates to an investigation of alleged child abuse. See id. § 261.001(1) (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). You do not inform us whether the department has adopted a rule that governs the release of this type of information. Therefore, we assume no such rule exists. Given this assumption, we find case number 94-257497 is confidential under section 261.201(a) of the Family Code and must be withheld under section 552.101 of the Government Code. Section 552.101 of the Government Code also encompasses the doctrine of common-law privacy, which excepts from public disclosure private information about an individual 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. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). 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. 540 S.W.2d at 683. Upon review, we find that portions of the information in case number 01-222648 are highly intimate or embarrassing and of no legitimate public interest. Accordingly, the department must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. However, we find that none of the remaining information in this report implicates an individual's privacy interests for purposes of common-law privacy. Thus, no portion of the remaining information may be withheld on the basis of common-law privacy. Section 552.108(a)(1) of the Government Code 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 at issue. See id. §§ 552.108(a)(1), .301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that case number 06-806784 relates to an open criminal investigation or prosecution. Based on your representation and our review of the information at issue, we conclude that 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. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases). Thus, section 552.108(a)(1) is applicable to case number 06-806784. We note that basic information about an arrested person, an arrest, or a crime is not excepted from disclosure under section 552.108. Gov't Code § 552.108(c). Such basic information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 186-87; Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Therefore, with the exception of basic information, the department may withhold case number 06-806784 under section 552.108(a)(1). In summary, (1) the department must withhold case number 8-0161134 under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code; (2) the department must withhold case number 90-335783 under section 552.101 in conjunction with former section 51.14 of the Family Code; (3) the department must withhold case number 94-257497 under section 552.101 in conjunction with section 261.201(a) of the Family Code; (4) the department must withhold the information we have marked under section 552.101 in conjunction with common-law privacy; and (5) with the exception of basic information, the department may withhold case number 06-806784 under section 552.108(a)(1) of the Government Code. The remaining information must be released 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, toll free, at (888) 672-6787. Sincerely, Christopher D. Sterner Assistant Attorney General Open Records Division CDSA/eeg Ref: ID# 369975 Enc. Submitted documents c: Requestor (w/o enclosures)
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