November 2, 2010

Mr. Peter Scott

Assistant City Attorney

City of Wichita Falls

P.O. Box 1431

Wichita Falls, Texas 76307

OR2010-16557

Dear Mr. Scott:

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# 398919 (City ID# 288).

The Wichita Falls Police Department (the "department") received a request for a specified report. You claim the requested 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, such as section 261.201 of the Family Code. Section 261.201 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.

. . .

(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:

. . .

(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 was developed in an investigation of a report of suspected or alleged child abuse. See id. § 261.001(1)(E) (definition of "abuse" for purposes of Fam. Code ch. 261 includes sexual assault under Penal Code section 22.011); see also Penal Code § 22.011(c)(1) (defining "child" for purposes of Penal Code section 22.011 as a person younger than 17 years of age). Thus, we find this information falls within the scope of section 261.201. However, the requestor is a parent of the child victim who is the subject of the report at issue and is not alleged to have committed the suspected abuse. Therefore, the department may not use section 261.201(a) to withhold this information from this requestor. Fam. Code § 261.201(k). However, section 261.201(l)(3) states the identity of the reporting party must be withheld. Id. § 261.201(l)(3). Further, section 261.201(l)(2) states any information that is excepted from required disclosure under the Act or other law must be withheld from disclosure. Id. § 261.201(l)(2). You assert the information at issue is excepted from public disclosure under section 552.108 of the Government Code. Accordingly, we will address your remaining argument against disclosure.

Section 552.108(a)(2) excepts from required public disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.]" Gov't Code § 552.108(a)(2). 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 that the governmental body seeks to withhold. See id. § 552.301(e)(1)(A). Section 552.108(a)(2) is applicable only if the information in question relates to a criminal case that did not result in a conviction or a deferred adjudication. You state, and have provided a letter from the Chief of Police representing, the submitted information relates to a closed case that did not result in a conviction or a deferred adjudication. Thus, we find that section 552.108(a)(2) is applicable to the submitted information.

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). Section 552.108(c) refers to the basic front-page information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177, 186-87 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976), and includes the identity of the complainant. See Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). In this instance, the listed complainant is also the reporting party for purposes of section 261.201 of the Family Code. As noted above, section 261.201(l)(3) of the Family Code states the reporting party's identity must be redacted. See Fam. Code § 261.201(l)(3). Therefore, with the exception of basic information, the department may withhold the submitted information under section 552.108(a)(2). However, in releasing basic information, the department must withhold the reporting party's identifying information, which we have marked, under section 552.101 of the Government Code in conjunction with section 261.201(l)(3) of the Family Code. ⁽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,

Tamara Wilcox

Assistant Attorney General

Open Records Division

TW/dls

Ref: ID# 398919

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note the basic information being released contains confidential information regarding the alleged child victim to which the requestor has a right of access as 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.

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