 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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October 31, 2011 Ms. Cherl K. Byles Assistant City Attorney City of Fort Worth 1000 Throckmorton Street, 3rd Floor Fort Worth, Texas 76102 OR2011-15942 Dear Ms. Byles: 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# 434649 (P.I.R. No. W011026). The City of Fort Worth (the "city") received a request for two specified incident reports. You state the city is releasing one of the incident reports. You claim that the submitted information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." (1) Gov't Code § 552.101. This exception encompasses information protected by other statutes, such as 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 . . . 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[.] Fam. Code § 261.201(a), (k), (l)(2). Upon review, we find the submitted report was used or developed in an investigation of alleged child abuse. See id. § 261.001(1) (defining "abuse" for purposes of chapter 261 of the Family Code). Accordingly, we find the submitted report is generally confidential under section 261.201(a) of the Family Code. However, we note the submitted report reveals that the requestor may be the legal guardian of the child victim listed in the report, and the requestor is not alleged to have committed the abuse. As such, this requestor may have a right of access to the submitted information pursuant to section 261.201(k). As we are unable to determine whether the requestor is the guardian of the child victim, we will rule conditionally. If the requestor is not the guardian of the child victim listed in the submitted information, the city must withhold the submitted information in its entirety under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. If the requestor is the guardian of the child victim, pursuant to section 261.201(k), the city may not withhold the submitted information from the requestor under section 261.201(a). Id. § 261.201(k). However, we note section 261.201(l)(2) states 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, because you assert section 552.108(a)(1) for the submitted information, we will address your argument under this section. Section 552.108(a)(1) of the Government Code 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 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 the submitted information is the subject of a criminal investigation that is open and pending. You have also submitted an affidavit from an officer with the city's police department explaining that release of the information at issue would interfere with law enforcement activities. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. App.--Houston [14th Dist.] 1975) (court delineates law enforcement interests that are present in active cases), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976). Thus, we agree section 552.108(a)(1) 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). Such basic, front-page information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 186-8; see also Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). Thus, with the exception of basic information, the city may withhold the submitted information under section 552.108(a)(1) of the Government Code. In summary, if the requestor is not the guardian of the child victim listed in the submitted information, the city must withhold the submitted information in its entirety under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. If the requestor is the guardian of the child victim, then, with the exception of basic information, the city may withhold the submitted information under section 552.108 of the Government Code. (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, Tamara H. Holland Assistant Attorney General Open Records Division THH/ag Ref: ID# 434649 Enc. Submitted documents c: Requestor (w/o enclosures) Footnotes1. The Office of the Attorney General will raise a mandatory exception like section 552.101 on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). 2. We note that if the requestor has a statutory right of access to the submitted information, 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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