 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 21, 2012 Ms. Tiffany N. Evans Assistant City Attorney City of Houston P.O. Box 368 Houston, Texas 77001-0368 OR2012-04147 Dear Ms. Evans: 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# 449011 (GC No. 19236). The Houston Police Department (the "department") received a request for two specified reports. You claim the requested 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 information you submitted. 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. This exception encompasses information other statutes make confidential. You claim section 552.101 in conjunction with section 261.201 of the Family Code, which provides in 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 department 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 contend the information submitted as Exhibit 3 is confidential under section 261.201(a). We find the information at issue was used or developed in an investigation under chapter 261 of the Family Code, so as to fall within the scope of section 261.201(a)(2). See id. §§ 101.003 (defining "child" for purposes of Fam. Code title 5), 261.001(1), (4) (defining "abuse" and "neglect" for purposes of Fam. Code ch. 261). We note information may not be withheld on the basis of section 261.201(a) from a parent of a child who was the victim of alleged or suspected abuse or neglect unless the parent is alleged to have committed the abuse or neglect. See id. § 261.201(k). Although the requestor may be a parent of the child who was the victim of the alleged or suspected abuse or neglect, the requestor is accused of committing the abuse or neglect. We therefore conclude the department must withhold Exhibit 3 in its entirety under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. (1) See Open Records Decision No. 440 at 2 (addressing predecessor statute). (2) Section 552.101 of the Government Code also encompasses section 58.007 of the Family Code, which provides in part: (c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapters B, D, and E. . . . (e) Law enforcement records and files concerning a child may be inspected or copied by a juvenile justice agency as that term is defined by Section 58.101, a criminal justice agency as that term is defined by Section 411.082, Government Code, the child, and the child's parent or guardian. . . . (j) Before a child or a child's parent or guardian may inspect or copy a record or file concerning the child under Subsection (e), the custodian of the record or file shall redact: (1) any personally identifiable information about a juvenile suspect, offender, victim, or witness who is not the child; and (2) any information that is excepted from required disclosure under [the Act] or other law. Fam. Code § 58.007(c), (e), (j); see id. § 51.03(a)-(b) (defining "delinquent conduct" and "conduct indicating need for supervision" for purposes of Fam. Code title 3). Section 58.007(c) is applicable to records of juvenile conduct that occurred on or after September 1, 1997. See Act of June 2, 1997, 75th Leg., R.S., ch. 1086, §§ 20, 55(a), 1997 Tex. Gen. Laws 4179, 4187, 4199; Open Records Decision No. 644 (1996). The juvenile must have been at least 10 years old and less than 17 years of age when the conduct occurred. See Fam. Code § 51.02(2) (defining "child" for purposes of Fam. Code title 3). Section 58.007(c) is not applicable to information that relates to a juvenile as a complainant, victim, witness, or other involved party and not as a suspect or offender. Although the information submitted as Exhibit 2 involves a juvenile suspect, so as to be generally confidential under section 58.007(c), the requestor may be the juvenile's parent. As such, the requestor would have a right to inspect law enforcement records concerning the juvenile under section 58.007(e). See id. § 58.007(e). As we are unable to determine whether the requestor is the juvenile's parent, we will rule conditionally. Thus, if the requestor is not the juvenile's parent, we conclude the department must withhold Exhibit 2 in its entirety under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. But if the requestor is the juvenile's parent, Exhibit 2 may not be withheld under section 58.007(c). Section 58.007(j) provides, however, that information subject to any other exception to disclosure under the Act or other law must be redacted. See id. § 58.007(j)(2). Therefore, in the event the requestor is the juvenile's parent, so as to have a right to inspect Exhibit 2 under section 58.007(e), we will address the department's claim for the information under section 552.108 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 must reasonably explain how and why section 552.108 is applicable to the information at issue. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state Exhibit 2 is related to an open and active criminal investigation. You contend release of the information would interfere with the detection and investigation of a crime. Based on your representations, we conclude section 552.108(a)(1) is generally applicable to Exhibit 2. 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 present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). We note 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). Section 552.108(c) refers to the basic front-page offense and arrest information held to be public in Houston Chronicle. See 531 S.W.2d at 186-88; Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). The department must release basic information, including a detailed description of the offense, even if the information does not literally appear on the front page of an offense or arrest report. The department may withhold the remaining information in Exhibit 2 under section 552.108 of the Government Code. In summary, the department (1) must withhold Exhibit 3 under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code and (2) must withhold Exhibit 2 under section 552.101 in conjunction with section 58.007(c) of the Family Code if the requestor is not the juvenile suspect's parent; if the requestor is the juvenile's parent, the department may withhold Exhibit 2 under section 552.108(a)(1) of the Government Code, except for basic information under section 552.108(c), which must be released. 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 W. Morris, III Assistant Attorney General Open Records Division JWM/em Ref: ID# 449011 Enc: Submitted documents c: Requestor (w/o enclosures) Footnotes1. As we are able to make this determination, we need not address your other claim for Exhibit 3. 2. We note a parent or legal representative of a child who is the subject of reported abuse or neglect may have a right of access to certain abuse and neglect records maintained by the Texas Department of Family and Protective Services ("DFPS"). Section 261.201(g) of the Family Code provides that DFPS, upon request and subject to its own rules, shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect information concerning the reported abuse or neglect that would otherwise be confidential under this section if DFPS has edited the information to protect the confidentiality of the identity of the person who made the report and any other person whose life or safety may be endangered by the disclosure. See Fam. Code § 261.201(g).
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