August 26, 2011

Ms. Candice M. Gambrell

Assistant City Attorney

Legal Department

City of Houston

P.O. Box 368

Houston, Texas 77001-0368

OR2011-12375

Dear Ms. Gambrell:

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# 428080 (GC Nos. 18690 & 18577).

The Houston Police Department (the "department") received two requests from the same requestor for the 9-1-1 calls in the past six months and calls for service in the past year related to two specified addresses. You claim the submitted 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.

First, we note that one of the submitted 9-1-1 calls is not responsive to the request because it was created after the date the department received the request for information at issue. This ruling does not address the public availability of the information that is not responsive to the request, and the department is not required to release this information, which we have indicated, in response to this request. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. App.--San Antonio 1978, writ dism'd).

Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information made confidential by other statutes, including section 261.201, which 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.

Fam. Code § 261.201(a). You represent to this office that the call for service reports submitted as Exhibits 4, 5, and 6 were developed in an investigation of alleged or suspected child abuse or neglect. See id. §§261.001(1), (4) (defining "abuse" and "neglect" 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). Additionally, upon review, we find that some of the responsive 9-1-1 calls are either reports of alleged child abuse or neglect or relate to the calls for service in Exhibits 4, 5, and 6. Id. Accordingly, we determine the call for service reports submitted as Exhibits 4, 5, and 6, as well as the 9-1-1 calls we indicated, are within the scope of section 261.201 of the Family Code. You do not indicate the department has adopted a rule governing release of this type of information. Thus, the call for service reports submitted as Exhibits 4, 5, and 6, as well as the 9-1-1 calls we indicated, must be withheld in their entirety under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code.

Next, you claim the remaining responsive 9-1-1 call is excepted by section 552.108(a)(1) of the Government Code. Section 552.108(a)(1) 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(a)(1) 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, and provide documentation reflecting, that the remaining responsive 9-1-1 call pertains to a criminal investigation that is inactive pending additional leads. You further explain the statute of limitations on the offense at issue has not run and the investigation may be reactivated once additional leads are developed. Therefore, based on your representations and our review, we conclude the release of the information at issue at this time 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, the department may withhold the remaining responsive 9-1-1 call, which we have indicated, under section 552.108(a)(1) of the Government Code.

You contend the remaining call for service reports, submitted in Exhibits 2 and 3, are confidential under the doctrine of common-law privacy, which is also encompassed by section 552.101 of the Government Code. Common-law privacy protects information that (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The types of information considered intimate or embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. This office has found some kinds of medical information or information indicating disabilities or specific illnesses to be excepted from required public disclosure under common-law privacy. See Open Records Decision No. 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps).

You claim the remaining call for service reports are confidential in their entirety pursuant to common-law privacy. Generally, only highly intimate information that implicates the privacy of an individual is withheld. However, in certain instances, where it is demonstrated that the requestor knows the identity of the individual involved, as well as the nature of certain incidents, the entire report must be withheld to protect the individual's privacy. In this case, you have not demonstrated, and the submitted information does not reflect, this is a situation in which this information must be withheld in its entirety on the basis of common-law privacy. However, upon review, we have marked the portions of the remaining information that we find to be highly intimate or embarrassing and of no legitimate public interest. The department must withhold this marked information under section 552.101 of the Government Code in conjunction with common-law privacy. However, you do not explain how the remaining information is highly intimate or embarrassing and of no legitimate public interest. Thus, no remaining information may be withheld under section 552.101 in conjunction with common-law privacy.

In summary, the call for service reports submitted as Exhibits 4, 5, and 6, as well as the 9-1-1 calls we indicated, must be withheld in their entirety under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. The department may withhold the 9-1-1 call we indicated under section 552.108(a)(1) of the Government Code. The department must withhold the information we marked in the call for service reports in Exhibits 2 and 3 under section 552.101 of the Government Code in conjunction with common-law privacy. As you raise no other exceptions, the remaining portions of the call for service reports in Exhibits 2 and 3 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/agn

Ref: ID# 428080

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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