 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
October 26, 2011 Ms. Michelle T. Rangel Assistant County Attorney Fort Bend County 301 Jackson Street, Suite 728 Richmond, Texas 77469 OR2011-15711 Dear Ms. Rangel: 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# 434324. The Fort Bend County Attorney's Office (the "county attorney") received a request for eight specified offense reports. 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 representative sample of information. (1) 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 made confidential by other statutes, including section 261.201 of the Family Code, 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. . . . (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). You assert offense report numbers 05-3964, 05-8365, 08-19143, 08-27072, and 09-26452 were used or developed in investigations under chapter 261 of the Family Code. See id. § 261.001(1), (4) (defining "abuse" and "neglect" for purposes of section 261.201 of Family Code). Upon review, we find these five reports to be within the scope of section 261.201(a) of the Family Code. We note that the requestor is an attorney representing the mother of the child named in these reports, and the mother is not accused of having committed the alleged abuse. See Fam. Code § 261.201(k). However, a portion of report number 05-3964 refers to a prior investigation in which the mother was suspected of committing the alleged or suspected abuse. Therefore, the requestor does not have a right of access to this portion of the report, which we have marked, under section 261.201(k). See id. Accordingly, with the exception of the information we have marked, the county attorney may not withhold report numbers 05-3964, 05-8365, 08-19143, 08-27072, and 09-26452 from the requestor on the basis of section 261.201 of the Family Code. See id. However, section 261.201(l)(2) states any information that is excepted from required disclosure under the Act or other law must be withheld from disclosure. Id. § 261.201(l)(2). Thus, we will consider your remaining arguments against disclosure under section 552.101 and 552.108 of the Government Code. Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. The county attorney states that the submitted reports pertain to criminal investigations that have concluded. You have also submitted a letter from the Fort Bend County Sheriff's Office which explains that the reports at issue did not result in conviction or deferred adjudication. Based on the information you provided, we agree the information at issue pertains to cases that concluded in results other than conviction or deferred adjudication. Therefore, we agree section 552.108(a)(2) is applicable to the submitted information. However, section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976), and includes a detailed description of the offense. Accordingly, with the exception of basic information, the county attorney may withhold the submitted reports under section 552.108(a)(2) of the Government Code. You also raise section 552.101 in conjunction with section 411.083 of the Government Code for report numbers 05-3964 and 07-26376. Section 552.101 encompasses criminal history record information ("CHRI") generated by the National Crime Information Center or by the Texas Crime Information Center, which is confidential under federal and state law. 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 at 7 (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 the Department of Public Safety ("DPS") maintains, except 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 find the basic information in report numbers 05-3964 and 07-26376 does not contain CHRI for purposes of chapter 411. Accordingly, none of this information is confidential under chapter 411, and the county attorney may not withhold any of this information under section 552.101 on that ground. Section 552.101 of the Government Code also encompasses the doctrine of common-law privacy, which 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). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. Id. at 681-82. A compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). Moreover, we find a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. Upon review, we find no portion of the basic information in report numbers 05-3964 and 07-26376 constitutes a compilation of an individual's criminal history. Thus, none of this information may be withheld under section 552.101 on that ground. Common-law privacy also protects the types of information considered intimate or embarrassing by the Texas Supreme Court, which includes 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. Indus. Found. at 683. You raise common-law privacy for report number 05-3964, which involves allegations of sexual abuse. However, as previously noted, the requestor is an attorney for the mother of the minor child whose privacy rights are at issue and, therefore, has a special right of access to information that would ordinarily be withheld to protect the minor child's privacy interests. See Gov't Code § 552.023(b) (governmental body may not deny access to person or person's representative to whom information relates on grounds that information is considered confidential under privacy principles). Accordingly, the county attorney may not withhold any portion of the basic information from this requestor under section 552.101 in conjunction with common-law privacy. In summary, with the exception of basic information, the county attorney may withhold the submitted information under section 552.108(a)(2) of the Government Code. Within basic information, the county attorney must withhold the information we have marked in report number 05-3964 under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. The remaining basic information must be released. (2) 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, Michelle R. Garza Assistant Attorney General Open Records Division MRG/sdk Ref: ID# 434324 Enc. Submitted documents c: 2 Requestors (w/o enclosures) Footnotes1. 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 that submitted to this office. 2. As noted, the requestor has a special right of access to some of the information being released in this instance. Because such information is confidential with respect to the general public, if the county attorney receives another request for this information from a different requestor, the county attorney must again seek a ruling from this office.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |