 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 17, 2011 Ms. Judith N. Benton Assistant City Attorney City of Waco P. O. Box 2570 Waco, Texas 76702-2570 OR2011-17011 Dear Ms. Benton: 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# 438075 (ORR# LGL-11-1340). The Waco Police Department (the "department") received a request for all recorded statements of two named individuals regarding a specified investigation. You state the department will release some of the requested information, but claim 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. We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released). Initially, we note you have submitted information related to interviews of people other than the two individuals named in the request for information. The interview documents of these people are, thus, not responsive to the request for information. This ruling does not address the public availability of any information that is not responsive to the request, and the department is not required to release this information in response to this 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." (1) 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.
(b) A court may order the disclosure of information that is confidential under this section if:
(1) a motion has been filed with the court requesting the release of the information; (2) a notice of hearing has been served on the investigating agency and all other interested parties; and (3) after hearing and an in camera review of the requested information, the court determines that the disclosure of the requested information is: (A) essential to the administration of justice; and (B) not likely to endanger the life or safety of: (i) a child who is the subject of the report of alleged or suspected abuse or neglect; (ii) a person who makes a report of alleged or suspected abuse or neglect; or (iii) any other person who participates in an investigation of reported abuse or neglect or who provides care for the child. (c) In addition to Subsection (b), a court, on its own motion, may order disclosure of information that is confidential under this section if: (1) the order is rendered at a hearing for which all parties have been given notice; (2) the court finds that disclosure of the information is: (A) essential to the administration of justice; and (B) not likely to endanger the life or safety of: (i) a child who is the subject of the report of alleged or suspected abuse or neglect; (ii) a person who makes a report of alleged or suspected abuse or neglect; or (iii) any other person who participates in an investigation of reported abuse or neglect or who provides care for the child; and (3) the order is reduced to writing or made on the record in open court. . . . (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[.] Fam. Code § 261.201(a)-(c), (k), (l)(2). Upon review, we find the submitted responsive information was used or developed in an investigation of alleged or suspected child abuse under chapter 261 of the Family Code. See id. § 261.001(1) (defining "abuse" for purposes of section 261.201 of Family Code). Thus, this information is within the scope of section 261.201(a). The requestor asserts the department must release the requested information to him pursuant to section 261.201(b). Section 261.201(b) and (c) provide that information made confidential by section 261.201(a) must be released pursuant to a court order if certain requirements are met. See id. § 261.201(b), (c). The requestor has a submitted a copy of a court order that (1) authorizes the requestor, on behalf of the victims at issue, "to directly communicate with the Texas Department of Family and Protective Services [the 'DFPS'] and/or the Children's Advocacy Center-Waco, Advocacy Center for Crime Victims and Children (the 'CAC')" regarding the abuse investigation and (2) requires the parents of the child victims to provide the requestor with an authorization and release form that authorizes the DFPS and CAC to release abuse investigation information about the victims to the requestor. However, this court order does not require the department to release the information at issue to the requestor. See id. Thus, we conclude the requestor has failed to establish the requested information must be released to him pursuant to section 261.201(b). Nevertheless, the requestor has authorization from the parents of the child victims at issue in the responsive information, and the parents are not alleged to have committed the suspected abuse. Thus, the department may not withhold the information from the requestor on the basis of section 261.201(a). See id. § 261.201(k). Section 261.201(l)(2) provides, however, that, notwithstanding section 261.201(k), 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, we must address your argument under 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 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), 552.301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state the requested information relates to a pending criminal investigation. However, in correspondence to this office, the requestor asserts the investigation is not pending because "the District Attorney has refused prosecution and further investigation of this charge." Whether the criminal investigation is pending is a question of fact. This office cannot resolve factual disputes in the opinion process. See Open Records Decision Nos. 592 at 2 (1991), 552 at 4 (1990), 435 at 4 (1986). Where fact issues are not resolvable as a matter of law, we must rely on the facts alleged to us by the governmental body requesting our decision, or on those facts that are discernible from the documents submitted for our inspection. See ORD 552 at 4. Therefore, based on the department's representation that the case is pending, we determine release of the submitted information would interfere with the detection, investigation, or prosecution of this 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). Therefore, the department may withhold the submitted responsive information under section 552.108(a)(1) 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, James L. Coggeshall Assistant Attorney General Open Records Division JLC/ag Ref: ID# 438075 Enc. Submitted documents c: Requestor (w/o enclosures) Footnotes1. The Office of the Attorney General will raise mandatory exceptions on behalf of a governmental body. See Open Records Decision Nos. 481 at 2 (1987), 480 at 5 (1987); see, e.g., Open Records Decision No. 470 at 2 (1987) (because release of confidential information could impair rights of third parties and because improper release constitutes a misdemeanor, attorney general will raise predecessor statute of section 552.101 on behalf of governmental bodies).
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