April 25, 2012

Mr. B. Chase Griffith

For City of McKinney

Brown & Hofmeister, L.L.P.

740 East Campbell Road, Suite 800

Richardson, Texas 75081

OR2012-05869

Dear Mr. Griffith:

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# 451541 (ORR# 10-4971).

The McKinney Police Department (the "department"), which you represent, received a request for information pertaining to several specified reports, a named individual, and a specified address. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, and 552.1175 of the Government Code. ⁽¹⁾ We have considered the exceptions 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 exception encompasses information made confidential by other statutes, such as section 261.201 of the Family Code. Section 261.201 provides, in relevant part:

(a) [T]he 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.

Fam. Code § 261.201(a). Upon review, we find report numbers 12-000886 and 12-000081 and Event ID number 2012-008470 were used or developed in investigations under chapter 261. See id. §§ 261.001(1) (defining "abuse" for purposes of chapter 261 of the Family Code), 101.003(a) (defining "child" for purposes of section 261.201 as person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes). Therefore, these reports are within the scope of section 261.201(a). You do not indicate the department has adopted a rule governing the release of this type of information; therefore, we assume no such regulation exists. Given that assumption, we conclude report numbers 12-000886 and 12-000081 and Event ID number 2012-008470 are confidential pursuant to section 261.201 of the Family Code and must be withheld it in its entirety under section 552.101 of the Government Code. ⁽²⁾

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. Id. § 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, including the submitted digital recording, pertains to investigations that have been closed and no further action will be taken by the City of McKinney. Thus, these investigations concluded in a result other than conviction or deferred adjudication. Based on these representations, we agree section 552.108(a)(2) of the Government Code is generally applicable to this 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). 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), and includes a detailed description of the offense, as well as the location of the crime. See Open Records Decision No. 127 (1976) (summarizing types of information deemed public by Houston Chronicle). Accordingly, with the exception of basic information, the department may withhold the information at issue, which we have marked, under section 552.108(a)(2) of the Government Code. ⁽³⁾

You assert some of the basic information is excepted under section 552.1175 of the Government Code. Section 552.1175(b) provides in part the following:

Information that relates to the home address, home telephone number, emergency contact information, or social security number of [a peace officer as defined by article 2.12 of the Code of Criminal Procedure], or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates:

(1) chooses to restrict public access to the information; and

(2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status.

Gov't Code § 552.1175(b). Upon review, we determine the department must withhold the information we have marked under section 552.1175 of the Government Code if it relates to a peace officer who elects to restrict access to the information in accordance with section 552.1175(b). However, if the individual to whom the information pertains is no longer a licensed peace officer or does not elect to restrict access to his information, the department may not withhold the information we have marked under section 552.1175.

In summary, the department must withhold report numbers 12-000886 and 12-000081 and Event ID number 2012-008470 under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. With the exception of basic information, the department may withhold the remaining information, including the submitted digital recording, under section 552.108(a)(2) of the Government Code. In releasing basic information, the department must withhold the information we have marked pursuant to section 552.1175 of the Government Code if it relates to a peace officer who elects to restrict access to the information in accordance with section 552.1175(b).

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,

Sean Opperman

Assistant Attorney General

Open Records Division

SO/dls

Ref: ID# 451541

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Although you raise section 552.117 of the Government Code, we note section 552.1175 is the appropriate exception to raise for information the department does not hold in an employment capacity.

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

3. As our ruling is dispositive for this information, we do not address your claim under section 552.108(b)(2) of the Government Code.

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