May 16, 2012

Ms. Katie Lentz

Open Records

Williamson County Sheriff's Office

508 South Rock Street

Georgetown, Texas 78626

OR2012-07342

Dear Ms. Lentz:

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# 453793.

The Williamson County Sheriff's Office (the "sheriff's office") received two requests from different requestors for information concerning a specified case. You claim the submitted information is excepted from disclosure under sections 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Initially, we must address your responsibilities under the Act. Section 552.301 of the Government Code prescribes the procedures a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(b) of the Government Code, a governmental body that receives a request for information it wishes to withhold pursuant to one of the exceptions to public disclosure is required to submit to this office within fifteen business days of receiving the request (1) written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. See Gov't Code § 552.301(e). The sheriff's office received the first request for information on March 5, 2012. Thus, its fifteen-business-day deadline with respect to this request was March 26, 2012. Although the sheriff's office timely submitted information responsive to the first request on March 13, 2012, on March 29, 2012, it submitted additional information that should have been submitted with its initial request for a ruling. See id. § 552.308 (describing rules for calculating submission dates of documents sent via first class United States mail, common or contract carrier, or interagency mail). Thus, we find the sheriff's office failed to comply with the procedural requirements of section 552.301 of the Government Code with respect to this additional information.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the information is public and must be released, unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See id. § 552.302; Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 630 (1994). Normally, a compelling reason exists when third-party interests are at stake or when information is confidential under other law. Open Records Decision No. 150 (1977). You claim section 552.101 of the Government Code, which makes information confidential and provides a compelling reason for non-disclosure. Accordingly, we will consider your assertion of this exception for this and the timely 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. Section 552.101 encompasses section 261.201(a) of the Family Code, which provides:

(a) Except as provided by Section 261.203, the 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 ... 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). Although you claim the submitted information is confidential under section 261.201 of the Family Code, we note most of it relates to an investigation of assault in which the victim is an adult, and it was not used in an investigation under chapter 261 of the Family Code. Accordingly, we conclude section 261.201 is not applicable to the information concerning the assault investigation and the sheriff's office may not withhold that information under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. The remaining information concerns a report of suspected child neglect. See id. § 261.001(4) (defining "neglect" for purposes of chapter 261 of the Family Code); see also id. § 101.003(a) (defining "child" for purposes of chapter 261). Although the requestors in this instance are the child victim's parents, the sheriff's office may not release this information pursuant to section 261.201(k) because it is not the investigating agency. See id. § 261.201(k) (permitting investigating agency to release information otherwise confidential under section 261.201(a) in certain circumstances). Thus, the sheriff's office must withhold this information, which we have marked, under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code.

Section 552.101 of the Government Code also encompasses the doctrine of common-law privacy, which protects information if it (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 type of information considered highly 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 also has found some kinds of medical information or information indicating disabilities or specific illnesses are protected by common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). Upon review, we find the information you have marked, and the additional information we have marked, is highly intimate or embarrassing and of no legitimate public interest. Thus, it is generally protected by common-law privacy. We note, however, each requestor has a special right of access to private information concerning himself or herself. See Gov't Code § 552.023(a), (b) (individual has special right of access to information that relates to himself and is protected by laws intended to protect his privacy interests, and governmental body may not deny access on ground that information is considered confidential by privacy principles); Open Records Decision No. 481 at 4 (privacy theories not implicated when individual requests information concerning himself). Accordingly, the sheriff's office must generally withhold the marked information under section 552.101 of the Government Code in conjunction with common-law privacy. However, the sheriff's office must release to each requestor the information pertaining to him or her that is otherwise private.

Section 552.130 of the Government Code excepts from disclosure information related to a motor vehicle operator's or driver's license or permit issued by an agency of this state or another state or country. Gov't Code § 552.130(a)(1), (2). We note section 552.130 is intended to protect privacy interests, and an individual has a right of access to his own information. See id. § 552.023(a), (b); ORD 481 at 4. Accordingly, the sheriff's office must generally withhold the information you have marked and the information we have marked under section 552.130 of the Government Code, but it must release to each individual the information that pertains to him or her.

In summary, the sheriff's office must withhold the information we have marked under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. The sheriff's office generally must withhold the remaining marked information under section 552.101 of the Government Code in conjunction with common-law privacy and under section 552.130 of the Government Code. However, the sheriff's office must release to each individual the marked information that pertains to him or her. The remaining unmarked information must be released. ⁽¹⁾

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# 453793

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note each of the requestors has a special right of access to portions of the submitted information. Therefore, if the sheriff's office receives another request for this same information from a different requestor, it must again seek a ruling from this office. In addition, section 552.147 of the Government Code permits a governmental body to withhold the social security number of a living person without the necessity of requesting a ruling from this office. See Gov't Code § 552.147(b). However, an individual has a right of access to her own social security number. See generally id. § 552.023(a), (b).

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