February 28, 2011

Ms. Paula M. Rosales

Criminal District Attorney

Dallas County

133 North Riverfront Boulevard, LB-19

Dallas, Texas 75207-4399

OR2011-02913

Dear Ms. Rosales:

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# 410223.

The Dallas County District Attorney's Office (the "district attorney") received a request for information pertaining to the prosecution of a named individual for a specified offense, including reports, mug shots, and records submitted to the court. You state the district attorney does not possess any responsive mug shots. We note the Act does not require a governmental body to release information that did not exist when it received a request. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983). You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, 552.130, and 552.147 of the Government Code, and privileged under Texas Rule of Civil Procedure 192.5. ⁽¹⁾ We have considered your arguments and reviewed the submitted information. We have also received and considered comments submitted by the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

Initially, we address the requestor's contention that the district attorney did not comply with the requirements of section 552.301 of the Government Code in requesting a decision from this office. Section 552.301 prescribes the procedural obligations that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Under section 552.301(d), a governmental body must provide the requestor with (1) a written statement that the governmental body wishes to withhold the requested information and has asked for a decision from the attorney general, and (2) a copy of the governmental body's written communication to the attorney general within ten business days of receiving the request for information. Gov't Code § 552.301(d). The district attorney and the requestor state the district attorney received the request for information on December 8, 2010. Thus, the district attorney's ten-business day deadline was December 22, 2010. The requestor submits to our office a copy of the letter from the district attorney to the requestor, as well as the envelope in which the letter was sent, which is postmarked December 23, 2010. See id. § 552.308 (describing rules for calculating submission dates of documents sent via first class United States mail, common or contract carrier, or interagency mail). As such, we find the district attorney has failed to comply with the requirements mandated by subsection 552.301(d).

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 information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. 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). A compelling reason generally exists when information is confidential by law or third-party interests are at stake. See Open Records Decision Nos. 630 at 3, 325 at 2 (1982). Although you raise section 552.108 of the Government Code and Texas Rule of Civil Procedure 192.5, these provisions are discretionary in nature. They serve to protect a governmental body's interests and, thus, may be waived. See Gov't Code § 552.007; Open Records Decision Nos. 677 at 10 (2002) (attorney work product privilege under section 552.111 or rule 192.5 may be waived), 665 at 2 n.5 (2000) (discretionary exceptions in general), 663 at 5 (1999) (untimely request for decision resulted in waiver of discretionary exceptions), 177 (1997) (statutory predecessor to section 552.108 subject to waiver). Thus, in failing to comply with section 552.301, the district attorney has waived its arguments under section 552.108 and rule 192.5, and may not withhold the submitted information on either of these bases. However, because sections 552.101 and 552.130 can provide compelling reasons to withhold information, we will consider the applicability of these exceptions 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. This section encompasses information protected by other statutes, such as section 261.201 of the Family Code, which provides:

(a) [T]he 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.

Fam. Code § 261.201(a). Because the submitted information pertains to an investigation of alleged or suspected child abuse or neglect, the information is within the scope of section 261.201 of the Family Code. See id. § 261.001(1)(E) (definition of "abuse" for purposes of chapter 261 of the Family Code includes indecency with child under Penal Code section 21.11); see also Penal Code § 21.11 (defining "child" for purposes of section 21.11 as a minor younger than 17 years of age). As you do not indicate that the district attorney has adopted a rule that governs the release of this type of information, we assume that no such regulation exists. Given that assumption, and based on our review, we determine the submitted information is confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). Accordingly, the district attorney must withhold the submitted information from disclosure under section 552.101 of the Government Code as information made confidential by law. As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.

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,

Lindsay E. Hale

Assistant Attorney General

Open Records Division

LEH/em

Ref: ID# 410223

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note that, although you raise section 552.147 of the Government Code for grand jury information and article 20.20 of the Code of Criminal Procedure for the Texas motor vehicle record information, we understand you to raise section 552.101 of the Government Code in conjunction with article 20.02 of the Code of Criminal Procedure and section 552.130 for this information, respectively. Further, although you raise section 552.101 in conjunction with section 552.147 of the Government Code, we note section 552.101 does not encompass other exceptions in the Act.

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