March 11, 2011

Mr. Robert E. Reyna

Assistant City Attorney

City of San Antonio

P.O. Box 839966

San Antonio, Texas 78283-3966

OR2011-03382

Dear Mr. Reyna:

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# 413171 (COSA File No. 2010-7385).

The City of San Antonio Police Department (the "city") received a request for information pertaining to the investigation of the death of the child of the requestor's clients. 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 submitted information.

We note the requested information was the subject of a previous request for information, as a result of which this office issued Open Records Letter No. 2011-001257 (2011) on January 25, 2011. In Open Records Letter No. 2011-001257, we determined the city must withhold the requested information under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code because it was used or developed in an investigation of alleged child abuse or neglect. See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure). The requestor here, however, represents a parent of the child victim. Accordingly, as the facts and circumstances on which Open Records Letter No. 2011-01257 was based have changed, the city may not rely on that ruling as a previous determination and withhold the submitted information on that ground. See id. Therefore, we must address the city's arguments to withhold the submitted information from disclosure under the Act.

You assert the submitted information is excepted from disclosure under section 552.101 of the Government Code, which excepts"information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 261.201 of the Family Code provides in relevant 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). You assert the submitted information was used or developed in an investigation of alleged or suspected child abuse or neglect under chapter 261 of the Family Code. See id. § 261.001(1), (4) (defining "abuse" and "neglect" for purposes of chapter 261.201 of Family Code). Upon review, we find the submitted information is within the scope of section 261.201(a). As noted above, however, the requestor represents a parent of the child victim, and the parent represented by the requestor is not alleged to have committed the suspected abuse or neglect. Thus, the city 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)(2) provides, however, 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, we must address your argument to withhold the submitted information under section 552.108(a)(2) of the Government Code.

Section 552.108(a)(2) of the Government Code excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. See Gov't Code § 552.108(a)(2). However, you do not inform us the submitted information pertains to a case that concluded in a result other than conviction or deferred adjudication. See id. § 552.301(e)(1)(A) (governmental body must submit written comments stating reasons why stated exceptions apply that would allow information to be withheld under the Act). Therefore, we conclude you have failed to establish the submitted information is excepted from disclosure pursuant to section 552.108(a)(2). Accordingly, the city must release the submitted information to the requestor. ⁽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 L. Coggeshall

Assistant Attorney General

Open Records Division

JLC/bs

Ref: ID# 413171

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Because the requestor has a special right of access to the information being released, the city must again seek a decision from this office if it receives another request for the same information from another requestor.

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