 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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April 11, 2012 Ms. Leticia Mendiola Crime Records Office City of McAllen Police Department P.O. Box 220 McAllen, Texas 78505-0220 OR2012-05177 Dear Ms. Mendiola: 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# 450316. The McAllen Police Department (the "department") received two requests for information pertaining to case numbers 2010-026635 and 2010-026637. You claim the submitted information is excepted from disclosure under section 552.101 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." Gov't Code § 552.101. This section encompasses information made confidential 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. . . . (h) This section does not apply to an investigation of child abuse or neglect in a home or facility regulated under Chapter 42, Human Resources Code. Fam. Code § 261.201(a). Upon review, we find the submitted information pertains to a department investigation of suspected or alleged child abuse. See id. § 261.001(1)(E) (definition of child abuse includes sexual assault and aggravated sexual assault under Penal Code section 22.021); see also Penal Code § 22.011(c)(1) (defining "child" for purposes of Penal Code section 22.021 as person under 17 years of age). However, section 261.201 does not apply to investigations of child abuse or neglect in a home or facility regulated under chapter 42 of the Human Resources Code. Fam. Code § 261.201(h). The incident at issue occurred at a day care facility regulated under chapter 42 of the Human Resources Code. Accordingly, we find section 261.201 does not apply to the submitted information. Thus, the department may not withhold the submitted information under section 552.101 on that basis. Section 552.101 of the Government Code also encompasses laws that make criminal history record information ("CHRI") confidential. CHRI generated by the National Crime Information Center or by the Texas Crime Information Center 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. Similarly, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 in conjunction with chapter 411, subchapter F. The submitted records contain information constituting CHRI that is confidential under chapter 411 and federal law. Accordingly, the department must withhold that information, which we have marked, under section 552.101 in conjunction with federal law and chapter 411 and federal law. 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. The types of information considered intimate or embarrassing by the Texas Supreme Court in Industrial Foundation included 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. Id. at 683. This office has also found some kinds of medical information or information indicating disabilities or specific illnesses are generally highly intimate or embarrassing. See Open Records Decision No. 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). Further, this office has found common-law privacy generally protects the identifying information of juvenile victims of abuse or neglect. See Open Records Decision No. 394 (1983); cf. Fam. Code § 261.201. Although portions of the remaining information use a pseudonym for the alleged juvenile victim of abuse, we note some of the remaining information identifies the alleged juvenile child abuse victim. Upon review, we find the remaining information contains information that is highly intimate or embarrassing and not of legitimate public concern. Therefore, the department must withhold this information, which we have marked, under section 552.101 in conjunction with common-law privacy. We note some of the remaining information is subject to section 552.130 of the Government Code. (1) Section 552.130 excepts from disclosure information that relates to a motor vehicle operator's license or driver's license issued by an agency of this state or another state or country. See Gov't Code § 552.130(a)(1). Upon review, we find the department must withhold the motor vehicle record information we have marked under section 552.130 of the Government Code. In summary, the department must withhold the information we have marked under section 552.101 of the Government Code in conjunction with (1) chapter 411 of the Government Code and federal law, and (2) common-law privacy. The department must also withhold the information we have marked under section 552.130 of the Government Code. The remaining 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, Cindy Nettles Assistant Attorney General Open Records Division CN/dls Ref: ID# 450316 Enc. Submitted documents c: Requestor (w/o enclosures)
1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).
2. We note the information to be released contains a social security number. Section 552.147(b) of the
Government Code authorizes a governmental body to redact a living person's social security number from
public release without the necessity of requesting an attorney general decision under the Act. See Gov't Code
§ 552.147(b).
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