October 21, 2011

Ms. LeAnn M. Quinn

City Secretary

City of Cedar Park

600 North Bell Boulevard

Cedar Park, Texas 78613

OR2011-15456

Dear Ms. Quinn:

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# 433869 (Reference Numbers 11-748 and 11-763).

The City of Cedar Park (the "city") received two requests from different requestors. The first request is for all records pertaining to a named individual and the Cedar Park Pool or a specified address during a specified time period. The second request is for a specified 9-1-1 call pertaining to the second requestor. You state you will redact social security numbers under section 552.147(b) of the Government Code. ⁽¹⁾ You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the second request is narrower than the first request. Thus, Exhibit C is not responsive to the second request. Accordingly, the city need not release information to the second requestor that is not responsive to his request.

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 information protected by other statutes, including section 261.201 of the Family Code, which provides as follows:

(a) Except as provided by Section 261.203, the 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:

. . .

(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)(2)-(3). Upon review, we agree Exhibit B was used or developed during 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); see also id. § 101.003(a) (defining "child" for purposes of this section 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). Thus, we agree this information is within the scope of section 261.201(a) of the Family Code. Although the second requestor is a parent of the child victims listed in the information at issue, this requestor is alleged to have committed the child abuse or neglect. Thus, the second requestor does not have a right of access to the information at issue under section 261.201(k). See id. § 261.201(k). Accordingly, the city must withhold Exhibit B from the second requestor under section 552.101 of the Government Code in conjunction with section 261.201(k) of the Family Code. ⁽²⁾

We note the first requestor may be the other parent of the child victims listed in the information at issue. However, we are unable to determine whether the first requestor is a parent of the listed victims. Thus, we must rule conditionally with respect to the first requestor. If the first requestor is not a parent of the victims listed in the information at issue, then Exhibit B must be withheld in its entirety from the first requestor under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. If the first requestor is a parent of the victims listed in the information at issue, then pursuant to section 261.201(k), the information at issue may not be withheld from her on the basis of section 261.201(a). See id.

However, section 261.201(l)(3) states the identity of the reporting party must be withheld. See id. § 261.201(l)(3). Thus, the city must withhold the identity of the reporting party, which we have marked, under section 552.101 of the Government Code in conjunction with section 261.201(l)(3) of the Family Code. ⁽³⁾ Further, section 261.201(l)(2) of the Family Code states before a parent may inspect or copy a record or file concerning the child, any information that is excepted from required disclosure under the Act or other law must be withheld from disclosure. Id. § 261.201(l)(2). Accordingly, we will consider your remaining arguments under sections 552.101 and 552.130 for Exhibit B, if the first requestor is a parent of the victims. In either case, we will also consider your arguments for Exhibit C.

Section 552.101 of the Government Code also encompasses the common-law informer's privilege, which Texas courts have long recognized. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). The informer's privilege protects from disclosure the identities of persons who report activities over which the governmental body has criminal or quasi-criminal law-enforcement authority, provided the subject of the information does not already know the informer's identity. See Open Records Decision No. 208 at 1-2 (1978). The informer's privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to "administrative officials having a duty of inspection or of law enforcement within their particular spheres." Open Records Decision No. 279 at 1-2 (1981) (citing 8 John H. Wigmore, Evidence in Trials at Common Law, § 2374, at 767 (J. McNaughton rev. ed. 1961)). The report must be of a violation of a criminal or civil statute. See Open Records Decision Nos. 582 at 2 (1990), 515 at 4 (1988). The privilege excepts the informer's statement only to the extent necessary to protect that informer's identity. Open Records Decision No. 549 at 5 (1990).

You state Exhibit B contains the identity of a person who reported possible child abuse to the city's police department. Upon review, however, we find the remaining information in Exhibit B does not contain the identifying information of an informer. Therefore, the city may not withhold any of the remaining information in Exhibit B under section 552.101 of the Government Code in conjunction with the common-law informer's privilege.

You state the city redacted Texas driver's license and license plate numbers under section 552.130 of the Government Code pursuant to Open Records Decision No. 684 (2009). ⁽⁴⁾ Section 552.130 of the Government Code excepts from disclosure information relating to a motor vehicle operator's or driver's license or permit or a motor vehicle title or registration issued by an agency of this state or another state or country. See Act of May 24, 2011, 82nd Leg., R.S., S.B. 1638, § 4 (to be codified as an amendment to Gov't Code § 552.130). We agree the city must withhold from the first requestor most of the motor vehicle record information you have marked in Exhibits B and C under section 552.130 of the Government Code. You have not explained how the state identification number in Exhibit C is motor vehicle record information subject to section 552.130. Accordingly this number, which we have marked for release, may not be withheld from the first requestor.

Section 552.101 of the Government Code also encompasses criminal history record information ("CHRI") generated by the National Crime Information Center (the "NCIC") or by the Texas Crime Information Center (the "TCIC"). Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Texas Department of Public Safety ("DPS") maintains, except that DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090-.127. Thus, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. Upon review, we agree the information you have marked consists of CHRI. Therefore, the city must withhold the information you have marked in Exhibit C under section 552.101 of the Government Code in conjunction with chapter 411 of the Government Code.

In summary, the city must withhold Exhibit B from the second requestor under section 552.101 of the Government Code in conjunction with section 261.201(k) of the Family Code. If the first requestor is not a parent of the victims listed in the information at issue, then the city must withhold Exhibit B from the first requestor under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. However, if the first requestor is a parent of the victims listed in the information at issue, then the city must withhold the information we have marked in Exhibit B under section 552.101 of the Government Code in conjunction with section 261.201(l)(3) of the Family Code. With the exception of the information we have marked for release, the city must withhold the information you have marked in Exhibits B and C under section 552.130 of the Government Code. The city must withhold the information you have marked in Exhibit C under section 552.101 of the Government Code in conjunction with chapter 411 of the Government Code. The remaining information must be released to the first requestor. ⁽⁵⁾

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,

Nneka Kanu

Assistant Attorney General

Open Records Division

NK/em

Ref: ID# 433869

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

1. Section 552.147(b) authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act. Gov't Code § 552.147(b).

2. As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.

3. As our ruling is dispositive, we need not address your remaining argument against disclosure of this information.

4. Open Records Decision No. 684 is a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including Texas driver's license numbers under section 552.130 of the Government Code, without the necessity of requesting an attorney general decision. However, on September 1, 2011, the Texas legislature amended section 552.130 to allow a governmental body to redact the information described in subsections 552.130(a)(1) and (a)(3) without the necessity of seeking a decision from the attorney general. See Act of May 30, 2011, 82nd Leg., R.S., S.B. 602, § 22 (to be codified at Gov't Code § 552.130(c)). If a governmental body redacts such information, it must notify the requestor in accordance with section 552.130(e). See Act of May 30, 2011, 82nd Leg., R.S., S.B. 602, § 22 (to be codified at Gov't Code § 552.130(d), (e)). Thus, the statutory amendments to section 552.130 of the Government Code superceded Open Records Decision No. 684 on September 1, 2011. Therefore, a governmental body may only redact information subject to subsections 552.130(a)(1) and (a)(3) in accordance with section 552.130, not Open Records Decision No. 684.

5. We note the first requestor has a special right of access to the information being released in this instance. Because such information is confidential with respect to the general public, if the city receives another request for this information from a different requestor, the city must again seek a ruling from this office.

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