April 30, 2012

Ms. LeAnn M. Quinn

City Secretary

City of Cedar Park

450 Cypress Creek Road

Cedar Park, Texas 78613

OR2012-06226

Dear Ms. Quinn:

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# 452085 (Reference Number 12-246).

The City of Cedar Park (the "city") received a request for information pertaining to a specified incident involving named individuals. You state you are releasing some of the responsive information. You claim some of submitted information is excepted from disclosure under sections 552.108 and 552.130 of the Government Code. 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. ⁽¹⁾ Section 552.101 encompasses section 261.201 of the Family Code, which provides as follows:

(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 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), (k), (l). Upon review, we find that the submitted 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 Fam. Code ch. 261); see also Penal Code § 22.04(c) (defining "child" for purposes of injury to a child as a person 14 years of age or younger). Thus, we find this information is generally confidential under section 261.201 of the Family Code. However, the requestor is the attorney of a parent of the child victim, and the requestor's client is not alleged to have committed the alleged or suspected abuse. Thus, in this instance, the city may not use section 261.201(a) to withhold the submitted information from this requestor. Fam. Code § 261.201(k). Section 261.201(l)(2), however, states any information that is excepted from required disclosure under the Act or other law must be withheld from disclosure. Id. § 261.201(l)(2). You assert Exhibit C is excepted from public disclosure under section 552.108 of the Government Code, and the driver's license number you have marked in Exhibit B is excepted under section 552.130. Accordingly, we will consider your arguments under these exceptions.

Section 552.108 of the Government Code 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, and have provided documentation reflecting, that Exhibit C is related to a case that is inactive, but that is not closed pending further information and investigation by the city police department. Based on your representation and documentation, we conclude that release of this information would interfere with the detection, investigation, or prosecution of 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 present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Accordingly, we agree that section 552.108(a)(1) of the Government Code is applicable to Exhibit C, and it may be withheld on that basis. ⁽²⁾

Section 552.130 provides information relating to a motor vehicle operator's or driver's license or permit, a motor vehicle title or registration, or a personal identification document issued by an agency of Texas, another state, or country is excepted from public release. However, we note the driver's license number you have marked in Exhibit B belongs to the wife of the requestor's client. Section 552.130 is based on privacy principles; as such, the requestor may have a right of access to his client's wife's private information as her authorized representative. See Gov't Code § 552.023. Thus, to the extent the requestor is acting as his client's wife's authorized representative, she has a right of access to the driver's license number you have marked, and the city may not withhold this information from this requestor. Conversely, to the extent the requestor does not have a right of access to her client's wife's driver's license number, the city must withhold this information under section 552.130 of the Government Code.

To summarize, the city may withhold Exhibit C under section 552.108(a)(1) of the Government Code. The city must withhold the driver's license number you have marked in Exhibit B under section 552.130 of the Government Code, unless the requestor has a right of access to this number under section 552.023, in which case, it must be released to the requestor. The remaining information in Exhibit B must be released. ⁽³⁾

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,

Michael A. Pearle

Assistant Attorney General

Open Records Division

MAP/eb

Ref: ID# 452085

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

2. As our ruling is dispositive, we need not address your argument under section 552.108(b)(1) of the Government Code.

3. We note the information being released in this instance is confidential with respect to the general public. See Fam. Code § 261.201(k). Therefore, if the city receives another request for this information from a different requestor, then the city should again seek a decision from this office. See Gov't Code §§ 552.301(a), .302.

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