July 1, 2011

Ms. Kristin Kidd

Assistant District Attorney

Denton County

P.O. Box 2850

Denton, Texas 76202

OR2011-09384

Dear Ms. Kidd:

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# 422457.

The Denton County Criminal District Attorney's Office (the "district attorney") received a request for the complete files related to two specified cases. You claim the requested information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. ⁽¹⁾ We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽²⁾

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(a) of the Family Code, which provides:

(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.

Fam. Code § 261.201(a). You state the requested information was used or developed in an investigation of alleged child abuse. See id. § 261.001(1)(E) (defining "abuse" for purposes of chapter 261 of the Family Code as including offense of sexual assault under section 22.011 of the Penal Code); see also Penal Code § 22.011 (defining "child" for purposes of sexual assault as a child as person under 17 years of age). You have not indicated that the district attorney has adopted a rule that governs the release of this type of information. Therefore, we assume no such regulation exists. Given that assumption, we conclude the requested information is confidential under section 261.201(a) of the Family Code and the district attorney must withhold it under section 552.101 of the Government Code.

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,

Neal Falgoust

Assistant Attorney General

Open Records Division

NF/dls

Ref: ID# 422457

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Although you initially raised section 552.103 of the Government Code, you make no arguments to support this exception. Accordingly, we find the district attorney has waived its claim under this exception. See Gov't Code § 552.301(e) (governmental body must provide comments stating why exceptions raised should apply to information requested). We also note you failed to raise section 552.130 of the Government Code within the required ten-day deadline. See id. § 552.301(b). However, as section 552.130 is a mandatory exception, it provides a compelling reason to overcome the presumption of openness. See id. § 552.302. Therefore, we will consider its applicability to the submitted information.

2. 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 those records contain substantially different types of information than those submitted to this office.

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