June 29, 2010

Ms. Carol I. Fox Freeman

Attorneys for the city of League City

Ross, Banks, May, Cron & Cavin, P.C.

2 Riverway, Suite 700

Houston, Texas 77056-1918

OR2010-09616

Dear Ms. Freeman:

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# 384692. (# PIR 10-167).

The City of League City Police Department (the "department"), which you represent, received a request for information pertaining to a particular criminal prosecution. ⁽¹⁾ You claim the submitted information is excepted from disclosure under sections 552.101 and 552.130 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. Section 552.101 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 [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). Upon review, we find the submitted information consists of information used or developed in an investigation under chapter 261. See id. § 261.001(1) (defining "abuse" and "neglect" for purposes of Fam. Code ch. 261). Accordingly, we find the submitted information is generally confidential under section 261.201 of the Family Code.

We note, however, the requestor may be the legal representative of a parent of the children who were the victims listed in the submitted information, and this parent is not alleged to have committed the suspected abuse. As it is not clear whether the requestor is the legal representative of the parent for purposes of section 261.201(k), we must rule conditionally. If the requestor is not the legal representative of the parent, the submitted information is confidential under section 261.201(a) of the Family Code and must be withheld in its entirety under section 552.101 of the Government Code. If the requestor is the legal representative of the parent in this instance, the department may not use section 261.201(a) to withhold the information at issue from this requestor. Id. § 261.201(k). However, we note that section 261.201(l) also provides that before a legal representative of a parent can copy and inspect a record of a child under section 261.201(k), any personally identifiable information about a witness under 18 years of age who is not the parents's child and the identity of the party who made the report must be redacted. Id. § 261.201(l)(1), (3). Section 261.201(l)(2) also 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). To the extent the requestor is the legal representative of the parent, so that the department may not withhold the submitted information under section 261.201(a) of the Family Code, we will consider your remaining arguments under section 552.101.

Initially, we note that the submitted documents contain information regarding a child witness who is not the subject of the report and is not a child of the requestor. Thus, the department must withhold the marked identifying information of the child witness under section 552.101 of the Government Code in conjunction with section 261.201(l)(1) of the Family Code. We note in this regard that you have submitted a DVD bates stamped number 000199 that contains an interview with the child witness at issue. The department must withhold the portion of this DVD that contains the interview with the child witness from the DVD. To the extent the department does not have the technical capacity to redact this information, this DVD must be withheld in its entirety. The department must also withhold the marked identifying information of the reporting party under section 552.101 of the Government Code in conjunction with section 261.201(l)(3) of the Family Code. ⁽²⁾

Section 552.101 also encompasses the MPA, subtitle B of title 3 of the Occupations Code. Section 159.002 of the MPA provides in part:

(b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.

(c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

Occ. Code § 159.002(b)-(c). Information that is subject to the MPA includes both medical records and information obtained from those medical records. See id. §§ 159.002, .004; Open Records Decision No. 598 (1991). This office has concluded that the protection afforded by section 159.002 extends only to records created by either a physician or someone under the supervision of a physician. See Open Records Decision Nos. 487 (1987), 370 (1983), 343 (1982). Upon review, we find none of the remaining information consists of medical records for purposes of the MPA. Accordingly, no portion of the submitted information may be withheld under section 552.101 on this basis.

We next note that section 552.101 encompasses section 411.153 of the Government Code, which provides as follows:

(a) A DNA record stored in the DNA database is confidential and is not subject to disclosure under the public information law, Chapter 552.

(b) A person commits an offense if the person knowingly discloses to an unauthorized recipient information in a DNA record or information related to a DNA analysis of a sample collected under this subchapter.

(c) An offense under this section is a state jail felony.

(d) A violation under this section constitutes official misconduct.

Gov't Code § 411.153. A "DNA record" means the results of a forensic DNA analysis performed by a DNA laboratory. See id. § 411.141(6)-(7). "Forensic analysis" is defined as "a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action." See Crim. Proc. Code art. 38.35(4); see also Gov't Code § 411.141(10) (providing that "forensic analysis" has meaning assigned by Crim. Proc. Code art. 38.35). A "DNA database" means "one or more databases that contain forensic DNA records maintained by the director [of the Texas Department of Public Safety (the "DPS")]." Gov't Code § 411.141(5); see id. § 411.001(3).

The director of the DPS is required to establish certain procedures for DNA laboratories. See id. §§ 411.144(a), .142(h) (requiring director to establish standards for DNA analysis). Section 411.144 of the Government Code provides that a DNA laboratory conducting a forensic DNA analysis under subchapter G of chapter 411 shall comply with subchapter G and the rules adopted under subchapter G. See id. § 411.144(d); 37 T.A.C. § 28.82(a). The DPS has adopted rules that govern the regulation of forensic DNA laboratories in this state. See 37 T.A.C. §§ 28.81, .82 (describing minimum standards by which a forensic DNA laboratory must abide); see also Gov't Code § 411.147(b).

In this instance, one of the submitted documents is a DNA record relating to a DNA analysis of samples collected under subchapter G of chapter 411 of the Government Code. The document in question is contained in records of a criminal investigation. The document appears to be the result of a forensic DNA analysis performed by a DNA laboratory in accordance with DPS regulations. We therefore conclude that you must withhold the DNA records that we have marked under section 552.101 of the Government Code in conjunction with section 411.153 of the Government Code.

Section 552.101 also encompasses the common-law informer's privilege, which Texas courts have long recognized. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). The informer's privilege protects the identities of persons who report activities over which the governmental body has criminal or quasi-criminal law-enforcement authority, provided that the subject of the information does not already know the informer's identity. See Open Records Decision Nos. 515 at 3 (1998), 208 at 1-2 (1978). The informer's privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to "administrative officials having a duty of inspection or of law enforcement within their particular spheres." See Open Records Decision No. 279 at 2 (1981) (citing Wigmore, Evidence, § 2374, at 767 (McNaughton rev. ed. 1961)). The report must be of a violation of a criminal or civil statute. See Open Records Decision Nos. 582 at 2 (1990), 515 at 4-5 (1988). The privilege excepts the informer's statement only to the extent necessary to protect the informer's identity. See Open Records Decision No. 549 at 5 (1990).

You seek to withhold under the informer's privilege the identifying information of witnesses who provided information to the department in the course of its investigation. We note that witnesses who provide information in the course of an investigation but do not make the initial report of the violation are not informants for the purposes of the common-law informer's privilege. We thus conclude that none of the remaining information at issue may be withheld under section 552.101 of the Government Code in conjunction with the common-law informer's privilege.

The department also seeks to withhold some of the remaining information under section 552.101 in conjunction with the doctrine of common-law privacy. Common-law privacy protects information that: (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. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The type 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. Id. at 683. The submitted information relates to sexual assault or another sex-related offense. Generally, only information that either identifies or tends to identify a victim of sexual assault or another sex-related offense must be withheld under common-law privacy. However, a governmental body is required to withhold an entire report when this identifying information is inextricably intertwined with other releasable information or when the requestor knows the identity of the alleged victim. See Open Records Decisions Nos. 393 (1983), 339 (1982); see also Open Records Decision No. 440 (1986) (detailed descriptions of serious sexual offenses must be withheld).

In this instance, the submitted information indicates that the requestor knows the identity of the alleged sexual assault victims. However, as noted above, the requestor may be the legal representative of the parent of the alleged victims. Under section 552.023 of the Government Code, a person's authorized representative has a special right of access to private information that would otherwise be excepted from public disclosure. See Gov't Code § 552.023; Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning herself or person for whom she is authorized representative). Accordingly, the department may not withhold the remaining information from this requestor under section 552.101 in conjunction with common-law privacy.

We note a portion of the remaining information is subject to section 552.130 of the Government Code. Section 552.130 provides information relating to a motor vehicle operator's license or driver's license issued by a Texas agency is excepted from public release. Gov't Code § 552.130(a)(1). Thus, the department must withhold the Texas driver's license information we have marked under section 552.130. ⁽³⁾

Finally, you argue that the DVDs you have submitted that are bates stamped numbers 000203 through 000211 are protected by copyright law. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990).

In summary, if the requestor is not the legal representative of the parent of the child victims, the department must withhold the submitted information in its entirety under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. However, if the requestor is the legal representative of the parent of the child victims, then the department must withhold: 1) any personally identifiable information about a witness under 18 years of age who is not the parent's child and the identity of the party who made the report under section 552.101 of the Government Code in conjunction with sections 261.201(l)(1) and 261.201(l)(3) of the Family Code; 2) the DNA record that we have marked under section 552.101 of the Government Code in conjunction with section 411.153 of the Government Code; and 3) the information we have marked under section 552.130, and must release the remaining information. ⁽⁴⁾ However, any information that is protected by copyright may only be released in accordance with copyright law.

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,

Michael A. Pearle

Assistant Attorney General

Open Records Division

MAP/tp

Ref: ID# 384692

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. You state that a portion of the requested information has been transferred to the Galveston County District Attorney's Office (the "district attorney") and is therefore not in the department's possession. We note that information relating to the prosecution at issue in possession of the district attorney is being addressed in another request to this office, which has been assigned ID# 385281.

2. As we are able to make these determinations under sections 261.201(l)(1) and 261.201(l)(3) of the Family Code, we need not address your arguments for this information under the informer's privilege.

3. We note this office recently issued Open Records Decision No. 684 (2009), a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including Texas driver's license numbers under section 552.130 of the Government Code, without the necessity of requesting an attorney general decision.

4. To the extent the requestor has a special right of access under section 261.201(k) of the Family Code and section 552.023 of the Government Code to the information being released, then if the department receives another request for this same information from an individual who does not have a right of access to the information, the department should request another ruling. See Gov't Code §§ 552.301, .302; Open Records Decision No. 673 (2001).

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