January 3, 2011

Mr. John Ohnemiller

First Assistant City Attorney

City of Midland

P.O. Box 1152

Midland, Texas 79702-1152

OR2011-00039

Dear Mr. Ohnemiller:

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# 403257.

The City of Midland (the "city") received a request for all police reports involving the requestor's son. You state some information has been released to the requestor. 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.

Initially, we note the submitted information includes documents filed with a court, which are expressly public under section 552.022(a)(17) of the Government Code. See Gov't Code § 552.022(a)(17). Such information must be released unless it is expressly confidential under "other law." You claim the court-filed documents are excepted from disclosure under section 552.108 of the Government Code. However, section 552.108 is a discretionary exception that protects a governmental body's interests and is, therefore, not "other law" for purposes of section 552.022(a)(17). See Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 586 (1991) (governmental body may waive section 552.108). Therefore, the city may not withhold these court-filed documents, which we have marked, under section 552.108 of the Government Code. However, because section 552.101 of the Government Code constitutes "other law" that makes information confidential for the purposes of section 552.022, we will consider the applicability of this section.

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 made confidential by other statutes, including section 58.007 of the Family Code, which provides in relevant part:

(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapters B, D, and E.

. . .

(e) Law enforcement records and files concerning a child may be inspected or copied by a juvenile justice agency as that term is defined by Section 58.101, a criminal justice agency as that term is defined by Section 411.082, Government Code, the child, and the child's parent or guardian.

. . .

(j) Before a child or a child's parent or guardian may inspect or copy a record or file concerning the child under Subsection (e), the custodian of the record or file shall redact:

(1) any personally identifiable information about a juvenile suspect, offender, victim, or witness who is not the child; and

(2) any information that is excepted from required disclosure under Chapter 552, Government Code, or other law.

Fam. Code § 58.007(c), (e), (j). Juvenile law enforcement records relating to delinquent conduct that occurred on or after September 1, 1997 are confidential under section 58.007(c). See id. § 51.03 (defining "delinquent conduct"). For the purposes of section 58.007, a juvenile suspect or offender is a child as defined by section 51.02 of the Family Code. See id. § 51.02(2) ("child" means a person who is ten years of age or older and under seventeen years of age). You claim the information in Exhibit C is confidential under section 58.007. Upon review, we find that the information in Exhibits B and C involve allegations of juvenile delinquent conduct so as to fall within the scope of section 58.007(c). We note the requestor is a parent of one of the juvenile offenders involved in the submitted reports. Under section 58.007(e), a child's parent has a right to inspect or copy law enforcement records concerning her own child. See id. § 58.007(e). Thus, the requestor has a right of access to the submitted law enforcement records involving her child. Before a parent may inspect juvenile law enforcement records, however, any personally identifiable information concerning other juvenile suspects, offenders, victims, or witnesses must be redacted. See id. § 58.007(j)(1). Therefore, the city must withhold the identifying information of the juvenile offender we have marked in Exhibit C pursuant to section 552.101 of the Government Code in conjunction with section 58.007(j)(1). In addition, section 58.007(j)(2) provides that information subject to any other exception to disclosure under the Act or other law must be redacted. See id. § 58.007(j)(2). Therefore, we will consider your claim under section 552.108 of the Government Code for the information in Exhibit B not subject to section 552.022 of the Government Code.

Section 552.108 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 must reasonably explain how and why section 552.108 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 information in Exhibit B not subject section 552.022 is related to a pending criminal investigation. Based on this representation and our review, we conclude that the release of the information would interfere with the detection, investigation, or prosecution of crime. 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). Thus, we conclude that section 552.108(a)(1) is applicable in this instance.

We note that 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). Such basic information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 186-88; see also Open Records Decision No. 127 (1976) (summarizing types of information deemed public by Houston Chronicle). We note that basic information described in Houston Chronicle does not include Texas motor vehicle record information subject to section 552.130 of the Government Code. Thus, with the exception of the court documents subject to section 552.022 and basic information, the city may withhold the information in Exhibit B under section 552.108(a)(1) of the Government Code.

In summary, the city must withhold the identifying information of the juvenile offender we have marked in Exhibit C pursuant to section 552.101 of the Government Code in conjunction with section 58.007(j)(1). With the exception of the court documents subject to section 552.022(a)(17) and basic information, the city may withhold the information in Exhibit B under section 552.108(a)(1) of the Government 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,

Jennifer Burnett

Assistant Attorney General

Open Records Division

JB/vb

Ref: ID# 403257

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note that the requestor has a special right of access to the information being released in this instance. Because such information is confidential with respect to the general public, if the city receives another request for this information from a different requestor, the city must again seek a ruling from this office. We further note the information being released contains social security numbers. Section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act. See Gov't Code § 552.147(b).

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