January 11, 2011

Ms. LeAnne Lundy

Rogers, Morris & Grover, L.L.P.

5718 Westheimer Road, Suite 1200

Houston, Texas 77057

OR2011-00534

Dear Ms. Lundy:

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# 405578.

The New Caney Independent School District (the "district"), which you represent, received a request for information about a named teacher's aide. We note the district has redacted some information subject to section 552.117 of the Government Code pursuant to section 552.024(c) of the Government Code. ⁽¹⁾ You also state the district is redacting some information pursuant to the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g. ⁽²⁾ You claim the remaining submitted information is excepted from disclosure under sections 552.101, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽³⁾

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 in part:

(a) Except as provided by Section 261.203, the following information is confidential, is not subject to public release under Chapter 552, Government Code, 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). We note the district is not an agency authorized to conduct a chapter 261 investigation. See id. § 261.103 (listing agencies that may conduct child abuse investigations). You state Exhibit C consists of documents by the district's administration in conducting an administrative investigation of the incident at issue. You do not provide arguments explaining how such information could be subject to chapter 261. Thus, we find you failed to demonstrate the applicability of section 261.201 to Exhibit C, and this information may not be withheld on that basis.

However, the district's police department is authorized to conduct chapter 261 investigations. See id. You state the information submitted in Exhibit B relates to an investigation of alleged child abuse being conducted by the district's police department. See id. §§ 261.001(1) (defining "abuse" for purposes of chapter 261 of the Family Code), 101.003(a) (defining "child" for purposes of section 261.201 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). Based on your representations and our review, we find the information in Exhibit B is generally confidential under section 261.201(a). We note, however, that the requestor may be a parent or legal guardian of the child listed as the victim of the alleged abuse. Moreover, the requestor is not alleged to have committed the abuse. Therefore, if the requestor is the parent of the listed child victim, the information in Exhibit B may not be withheld from this requestor on the basis of section 261.201(a). See id. § 261.201(k). Accordingly, we rule conditionally. If the requestor is not the parent of the listed child victim, then Exhibit B must be withheld 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 a parent of the child victim, Exhibit B may not be withheld from this requestor under section 261.201(a). Id. However, section 261.201(l)(2) states any information that is excepted from required disclosure under the Act or other law may be withheld from disclosure. Id. § 261.201(l)(2). Accordingly, we will consider your remaining argument against disclosure of Exhibit B.

Section 552.108(a)(1) 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 claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state the district's police department's investigation of the case at issue in Exhibit B is ongoing, and that release of these records at this time would interfere with the investigation or prosecution of that case. Based on this representation and our review of the submitted information, we conclude the release of most of the information in Exhibit B 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) (court delineates law enforcement interests that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Thus, section 552.108(a)(1) is applicable to Exhibit B.

However, 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, and includes, among other things, the identity of the complainant. See Houston Chronicle, S.W.2d at 186-88; see also Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). The listed complainant in Exhibit B is also the reporting party. Section 261.201(l)(3) of the Family Code states the identity of the party who made the report must be redacted. See Fam. Code § 261.201(l)(3). Thus, in releasing basic information from Exhibit B, the district must withhold the reporting party's identity under section 552.101 of the Government Code in conjunction with section 261.201(l)(3).

The remaining submitted information contains information that may be subject to section 552.117 of the Government Code. Section 552.117(a)(1) excepts from disclosure the current and former home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024 of the Government Code. Whether a particular piece of information is protected by section 552.117(a)(1) must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). The district may only withhold information under section 552.117(a)(1) on behalf of current or former employees who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. Accordingly, the district must withhold the information we marked under section 552.117(a)(1) of the Government Code if the employee to whom the information pertains properly elected to keep the information confidential. If this individual did not so elect, the information we marked must be released.

In summary, if the requestor is not a parent of the listed child victim, then Exhibit B must be withheld in its entirety under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. If the requestor is a parent of the child victim, then, with the exception of basic information, the district may withhold Exhibit B under section 552.108(a)(1) of the Government Code. However, in releasing basic information, the district must withhold the listed complainant's identifying information pursuant to section 552.101 of the Government Code in conjunction with section 261.201(l)(3) of the Family Code. The district must withhold the information we marked pursuant to section 552.117(a)(1) of the Government Code if the employee to whom the information pertains properly elected to withhold the information. The remaining information must be released.

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,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/tf

Ref: ID# 405578

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Section 552.024(c) of the Government Code authorizes a governmental body to redact, without the necessity of requesting a decision from this office, the home address, home telephone number, social security number, and family member information of a current or former employee who properly elected to keep this information confidential. Gov't Code § 552.024(c).

2. The United States Department of Education Family Policy Compliance Office (the "DOE") has informed this office that FERPA does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act. The DOE has determined that FERPA determinations must be made by the educational authority in possession of the education records. We have posted a copy of the letter from the DOE to this office on the Attorney General's website: http://www.oag.state.tx.us/open/20060725usdoe.pdf.

3. We assume the representative sample of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

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