March 19, 2012

Ms. Valeria M. Acevedo

City Attorney

City of New Braunfels

P.O. Box 311747

New Braunfels, Texas 78131-1747

OR2012-04024

Dear Ms. Acevedo:

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# 447991.

The New Braunfels Police Department (the "department") received a request for information, including audio and video records, concerning three specified incidents. 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.

Section 552.101 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 section 261.201 of the Family Code, which states:

(a) Except as provided by Section 261.203, the following information is confidential, is not subject to public release under Chapter 552, Government Code, 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.

Fam. Code § 261.201(a), (k). You state the information submitted as Exhibits E.1 and E.2 was used or developed in an investigation of alleged child abuse. See id. § 261.001 (defining "abuse" for purposes of chapter 261 of the Family Code); see also id. § 101.003(a) (defining "child" for purposes of chapter 261). You explain although the requestor is the parent of the child named in the report, the requestor is alleged to have committed the abuse. Upon review, we agree the requestor does not have a right of access to the information at issue under section 261.201(k). See id. § 261.201(k). Thus, the department must withhold Exhibits E.1 and E.2 under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. ⁽¹⁾

Section 552.108(a)(2) of the Government Code excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. Gov't Code § 552.108(a)(2). A governmental body claiming section 552.108(a)(2) must demonstrate the requested information relates to a criminal investigation that concluded in a final result other than a conviction or deferred adjudication. See id. § 552.301(e)(1)(A); Open Records Decision No. 434 at 2-3 (1986). You state the remaining information pertains to investigations that did not result in conviction or deferred adjudication. Based on these representations and our review, we agree section 552.108(a)(2) of the Government Code is generally applicable to the remaining information.

We note, however, you have marked the identities of the complainants and the entire narrative portions in both of the reports at issue. 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). See Open Records Decision No. 127 (1976) (summarizing types of information deemed public by Houston Chronicle). This information includes, but is not limited to, the identity of a complainant and a sufficient portion of the narrative to encompass a detailed description of an offense. In this instance, the information at issue includes computer assisted dispatch ("CAD") records. In Open Records Decision No. 649 (1996), this office concluded information contained in a CAD report is substantially the same as basic information. See ORD 649 at 3; see also Open Records Decision No. 394 at 3 (1983) (there is no qualitative difference between information contained in radio cards or radio logs and front-page offense report information expressly held to be public in Houston Chronicle; thus, such information is generally public). We also note basic information does not include motor vehicle record information. ⁽²⁾ Accordingly, with the exception of basic information, which must include the identity of the complainants and sufficient portions of the narratives to encompass detailed descriptions of the offenses, the department may withhold the remaining information under section 552.108(a)(2) of the Government Code.

You seek to withhold the identity of the complainant in one of the reports on the basis of the informer's privilege. Section 552.101 of the Government Code also encompasses information protected by the common-law informer's privilege, which has long been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). The informer's privilege protects 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 Nos. 515 at 3 (1988), 208 at 1-2 (1978). The 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." See Open Records Decision No. 279 at 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 4-5. The privilege excepts the informer's statement only to the extent necessary to protect the informer's identity. See Open Records Decision No. 549 at 5 (1990). You state the individual whose identity you seek to withhold reported a possible assault to the department. However, we note the suspect in the alleged assault knows the identity of the complainant. Accordingly, we conclude the informer's privilege is not applicable in this situation, and the department may not withhold the information you have marked under section 552.101 of the Government Code on that basis.

In summary, the department must withhold Exhibits E.1 and E.2 under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. With the exception of basic information, which must include the identities of the complainants and sufficient portions of the narratives to encompass detailed descriptions of the offenses, the department may withhold the remaining information under section 552.108(a)(2) 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,

Neal Falgoust

Assistant Attorney General

Open Records Division

NF/ag

Ref: ID# 447991

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. As our ruling is dispositive, we do not address your remaining arguments against disclosure for this information.

2. As our ruling is dispositive for this information, we do not address your arguments against its disclosure.

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