March 23, 2010

Mr. B. Chase Griffith

Brown & Hofmeister, LLP

City of McKinney

740 East Campbell Road, Suite 800

Richardson, Texas 75081

OR2010-04034

Dear Ms. Griffith:

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# 374215.

The Little Elm Police Department (the "department"), which you represent, received a request for information pertaining to a specified incident, including the related "CPS referrals." You claim 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 disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses information protected by other statutes. Section 261.201(a) of the Family Code provides:

(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 . . . 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 contend the submitted information relates to an investigation under chapter 261 of the Family Code. See id. §§ 261.001 (defining "abuse" and "neglect" for purposes of chapter 261); 101.003(a) (defining "child" for purposes of section 261.201 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, we note the submitted police report involves an alleged domestic disturbance that occurred between a juvenile and an adult, in which the adult sustained an injury. Thus, this is not a report of alleged or suspected abuse or neglect made under section 261.201(a)(1). Furthermore, you have not explained how the submitted police report was used or developed in an investigation by the department of child abuse or neglect for purposes of section 261.201(a)(2). Therefore, we find the submitted police report is not confidential under chapter 261. We note, however, the submitted information contains a report pertaining to an investigation by Child Protective Services ("CPS") of alleged child abuse or neglect under chapter 261. Thus, we find the report pertaining to the CPS investigation, which we have marked, is within the scope of section 261.201. In this instance, the requestor is the parent of the child victim identified in the CPS investigation, and is not alleged to have committed the abuse. Thus, the report pertaining to the CPS investigation may not be withheld from this requestor under section 261.201(a). Id. § 261.201(k). However, section 261.201(l)(3) states the identity of the reporting party must be withheld. Further, section 261.201(l)(2) states 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). You also raise section 552.108 of the Government Code for the report pertaining to the CPS investigation. Therefore, we will consider your argument under this exception for the information at issue, as well as for the submitted police report not subject to chapter 261.

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. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state the submitted information relates to a pending criminal investigation. Based on your representation and our review, we conclude section 552.108(a)(1) is applicable to the submitted information. 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).

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, and includes the identity of the complainant. See Houston Chronicle, S.W.2d at 186-88; see also Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). Thus, with the exception of basic information, the department may withhold the submitted information under section 552.108(a)(1) of the Government Code. As stated above, section 261.201(l)(3) states the identity of the reporting must be withheld. Fam. Code § 261.201(l)(3). Therefore, in releasing basic information from the report pertaining to the CPS investigation, the department must withhold the identity of the reporting party pursuant to section 552.101 in conjunction with section 261.201(l)(3) of the Family Code.

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,

Matt Entsminger

Assistant Attorney General

Open Records Division

MRE/rl

Ref: ID# 374215

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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