 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 10, 2011 Mr. Todd C. Simons Assistant City Attorney City of San Angelo P.O. Box 1751 San Angelo, Texas 76902 OR2011-02102 Dear Mr. Simons: 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# 408795. The San Angelo Police Department (the "department") received a request for information relating to a specified incident. 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 information you submitted. 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. This exception encompasses information other statutes make confidential. You claim section 552.101 in conjunction with section 261.201 of the Family Code, which provides in 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: (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). We find the submitted information was used or developed in an investigation of alleged or suspected child abuse under chapter 261 of the Family Code and is therefore generally confidential under section 261.201(a). See id. §§ 261.001(1) (defining "abuse," for purposes of Fam. Code ch. 261, as including offenses of sexual assault under Penal Code § 22.011 and aggravated sexual assault under Penal Code § 22.021), 101.003 (defining child for purposes of Family Code tit. 5). In this instance, however, the requestor is a parent of the child who was the victim of the alleged or suspected abuse and is not accused of committing the abuse. Therefore, the department may not withhold the submitted information from this requestor on the basis of section 261.201(a). See id. § 261.201(k). Section 261.201(l) provides, however, that the identity of the reporting party must be withheld. See id. § 261.201(l)(3). The department must withhold the types of information we have marked that identify the reporting party under section 552.101 of the Government Code in conjunction with section 261.201(l)(3) of the Family Code. Section 261.201(l) also provides that any information excepted from disclosure under the Act or other law may be withheld. See id. § 261.201(l)(2). Therefore, we will address your other claims under sections 552.101 and 552.108 of the Government Code. You also claim section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code, which provides in 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. Fam. Code § 58.007(c). Section 58.007(c) is applicable to records of juvenile conduct that occurred on or after September 1, 1997. See Act of June 2, 1997, 75th Leg., R.S., ch. 1086, §§ 20, 55(a), 1997 Tex. Gen. Laws 4179, 4187, 4199; Open Records Decision No. 644 (1996). The juvenile must have been at least 10 years old and less than 17 years of age when the conduct occurred. See Fam. Code § 51.02(2) (defining "child" for purposes of Fam. Code tit. 3). Section 58.007(c) is not applicable to information that relates to a juvenile as a complainant, victim, witness, or other involved party and not as a suspect or offender. Although you contend the remaining information is confidential under section 58.007(c), we find the information at issue does not involve a juvenile suspect or offender. We therefore conclude the department may not withhold the remaining information under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. 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 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 remaining information is related to a pending investigation. Based on your representation, we conclude section 552.108(a)(1) is applicable in this instance. 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 present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). We note 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. See 531 S.W.2d at 186-88; Open Records Decision No. 127 (1976) (summarizing types of information deemed public by Houston Chronicle). The department must release basic information, including a detailed description of the offense, even if the information does not literally appear on the front page of an offense or arrest report. The department may withhold the remaining information under section 552.108(a)(1) of the Government Code. In summary: (1) the department must withhold the types of information we have marked that identify the reporting party under section 552.101 of the Government Code in conjunction with section 261.201(l)(3) of the Family Code; and (2) the department may withhold the rest of the submitted information under section 552.108(a)(1) of the Government Code, except for the basic information that must be released under section 552.108(c). (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, James W. Morris, III Assistant Attorney General Open Records Division JWM/em Ref: ID# 408795 Enc: Submitted documents c: Requestor (w/o enclosures) Footnotes1. We note the requestor has a right of access in this instance to information the department would be required to withhold from the general public. Should the department receive another request for this same information from a different requestor, the department should resubmit this information and request another decision. See Gov't Code §§ 552.301(a), .302.
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