March 23, 2010

Ms. Lillian Guillen Graham

Assistant City Attorney

City of Mesquite

P.O. Box 850137

Mesquite, Texas 75187-0137

OR2010-04059

Dear Ms. Graham:

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# 373770 (Reference# 478).

The Mesquite Police Department (the "department") received a request for a specified offense report, arrest report, and call sheet, as well as any other records pertaining to a specified address during a specified time period. You state the department has released some of the responsive information. 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 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 [Texas Department of Family and Protective Services] 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) (definition of "child abuse" includes indecency with a child under Penal Code § 21.11); see also id. § 101.003(a) (defining "child" for purposes of this section as a person under 18 years of age). 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 requestor is one of the victims of the alleged or suspected abuse, and she is at least eighteen years of age. 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). Section 261.201(l)(1), however, states any personally identifiable information about a child victim or witness must be withheld, unless that child victim or witness is the subject of the report or is another child of the person requesting the information. Id. § 261.201(l)(1). Furthermore, 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). Accordingly, we will consider whether the submitted information may otherwise be withheld from the requestor.

Section 552.101 also encompasses section 58.007 of the Family Code, which you assert for the submitted information. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007 of the Family Code. We note that section 58.007 is inapplicable in this instance because the juvenile conduct at issue occurred in 1995. However, former section 51.14 of the Family Code is applicable to this information. Prior to its repeal by the Seventy-fourth Legislature, section 51.14(d) of the Family Code provided for the confidentiality of juvenile law enforcement records. Law enforcement records pertaining to conduct occurring before January 1, 1996, are governed by the former section 51.14(d), which was continued in effect for that purpose. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 100, 1995 Tex. Gen. Laws 2517, 2591. Section 51.14 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). Former section 51.14 provided in relevant part as follows:

(d) Except as provided by Article 15.27, Code of Criminal Procedure, and except for files and records relating to a charge for which a child is transferred under Section 54.02 of this code to a criminal court for prosecution, the law-enforcement files and records are not open to public inspection nor may their contents be disclosed to the public, but inspection of the files and records is permitted by:

(1) a juvenile court having the child before it in any proceeding;

(2) an attorney for a party to the proceeding; and

(3) law-enforcement officers when necessary for the discharge of their official duties.

Fam. Code § 51.14 (repealed 1995). The submitted information concerns juvenile delinquent conduct that occurred prior to January 1, 1996. Therefore, this information is confidential under former section 51.14(d) of the Family Code and must be withheld in its entirety pursuant to section 552.101 of the Government Code. As our ruling is dispostive, we need not address your remaining argument.

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,

Tamara H. Holland

Assistant Attorney General

Open Records Division

THH/jb

Ref: ID# 373770

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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