November 9, 2010

Ms. P. Armstrong

Assistant City Attorney

Criminal Law and Police Section

City of Dallas

1400 South Lamar

Dallas, Texas 75215

OR2010-16972

Dear Ms. P. Armstrong:

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# 399581 (DPS Nos. 2010-7771 and 2010-7787).

The Dallas Police Department (the "department") received two requests for information related to a specified incident. ⁽¹⁾ You claim that the requested 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.

We must first address the department's obligations under section 552.301 of the Government Code. Under section 552.301(e), a governmental body receiving a request for information that the governmental body wishes to withhold pursuant to an exception to disclosure under the Act is required to submit to this office within fifteen business days of receiving the request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code § 552.301(e). Your submission to this office dated September 7, 2010 did not include a copy of the second requestor's written request for information, and as of the date of this letter we have not received a copy of the second request as required under section 552.301(e). We therefore find you have failed to comply with the procedural requirements of section 552.301(e) in this instance.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the requested information is public and must be released, unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See id. § 552.302; Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 630 (1994). Generally, a governmental body may demonstrate a compelling reason to withhold information by a showing that the information is made confidential by another source of law or affects third party interests. See Open Records Decision No. 630 (1994). Because section 552.101 can present compelling reasons to withhold information, we will consider the applicability of this exception to 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, including section 261.201 of the Family Code, which provides as follows:

(a) Except as provided by Section 261.203, the 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 state the submitted information was used or developed in an investigation of alleged or suspected child abuse or neglect. See id. § 261.001(1), (4) (defining "abuse" and "neglect" 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). Upon review, we find the submitted information is within the scope of section 261.201(a).

We note the second requestor is a parent of the child victims who are the subject of the alleged abuse or neglect. However, this requestor is alleged to have committed the suspected abuse or neglect. Therefore, the submitted information falls within the scope of section 261.201(a), and this requestor does not have a right of access under section 261.201(k). Thus, the department must withhold the submitted information from the this requestor under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code.

In addition, we note the first requestor may be the managing conservator or other legal representative of the children who are the subject of the alleged abuse or neglect. Moreover, this requestor is not accused of committing the alleged abuse or neglect. But as we are unable to determine whether this requestor is the children's managing conservator or other legal representative, we must rule conditionally. Thus, if this requestor is not the managing conservator or legal representative of the children, the submitted information must be withheld in its entirety from this requestor under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. If this requestor is the children's managing conservator or other legal representative, the submitted information may not be withheld under section 552.101 on the basis of section 261.201(a). Id. § 261.201(k). We note, however, section 261.201(l) provides that before a managing conservator or other legal representative can copy and inspect a record of a child under section 261.201(k), any personally identifiable information about a victim or witness under 18 years of age who is not the child of managing conservator or other legal representative and the identity of the party who made the report must be redacted. Id. § 261.201(l)(1), (3). Therefore, the department must withhold the information we have marked that identifies child witnesses who are not the first requestor's children and the reporting party pursuant to section 261.201(l)(1) and section 261.201(l)(3) of the Family Code. 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). Thus, because you also assert section 552.101 in conjunction with common-law privacy, we will consider your argument under this section.

Section 552.101 also encompasses the doctrine of common-law privacy, which 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. 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. Id. at 683. Upon review, we find none of the remaining information is highly intimate or embarrassing or not of legitimate public interest. Thus, none of the remaining information may be withheld under section 552.101 in conjunction with common-law privacy.

In summary, the department must withhold the submitted information in its entirety from the second requestor under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. If the first requestor is not the managing conservator or legal representative of the child victims, the submitted information must also be withheld in its entirety from this requestor under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. However, if first requestor is managing conservator or other legal representative of the child victims, the submitted report must be provided to the requestor pursuant to section 261.201(k) of the Family Code. ⁽²⁾ However, in this case the department must withhold the information we have marked that identifies child witnesses who are not the first requestor's children and the reporting party pursuant to section 261.201(l)(1) and 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,

Tamara Wilcox

Assistant Attorney General

Open Records Division

TW/dls

Ref: ID# 399581

Enc. Submitted documents

c: Requestors

(w/o enclosures)

Footnotes

1. As you have not submitted a copy of the second request, we take our description from your brief.

2. We note the submitted information contains confidential information regarding one of the alleged child victims to which one requestor may have a right of access as the child's managing conservator or other legal representative. 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. See Gov't Code §§ 552.301(a), .302.

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