 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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June 13, 2012 Ms. Judith N. Benton Assistant City Attorney City of Waco P.O. Box 2570 Waco, Texas 76702-2570 OR2012-09135 Dear Ms. Benton: 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# 456420 (Waco Reference No. LGL-12-504). The Waco Police Department (the "department") received a request for information related to the investigation of specified incidents involving a named individual. You claim the submitted 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 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 protected by other statutes, such as section 261.201 of the Family Code, which provides: (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 [Texas 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; and (3) the identity of the person who made the report. Fam. Code § 261.201(a), (k), (l)(2)-(3). Because report numbers 09-27792 and 10-6239 pertain to investigations of alleged or suspected child abuse, the information is within the scope of section 261.201 of the Family Code. See id. § 261.001(1)(E) (definition of "abuse" includes indecency with a child and sexual assault under Penal Code sections 21.11 and 22.011); see also Penal Code §§ 21.11 (defining "child" for purposes of section 21.11 as a minor younger than 17 years of age), 22.011(c)(1) (defining "child" for purposes of section 22.011 as "a person younger than 17 years of age"). As you have not indicated that the department has adopted a rule that governs the release of this type of information, we assume no such regulation exists. Therefore, we find report number 10-6239 is confidential under section 261.201(a) of the Family Code and must be withheld under section 552.101 of the Government Code. However, the requestor is the attorney for the parents of the child victim named in report number 09-27792. Further, the requestor's clients are not accused of committing the alleged or suspected abuse. Accordingly, the department may not withhold report number 09-27792 from this requestor under section 261.201(a). See Fam. Code § 261.201(k). However, section 261.201(l)(3) of the Family Code states the identity of the reporting party must be withheld when a governmental body releases information under section 261.201(k). Id. § 261.201(l)(3). Therefore, the department must withhold the reporting party's identity, which we have marked, under section 552.101 in conjunction with section 261.201(l)(3) of the Family Code. Additionally, section 261.201(l)(2) states that any information that is excepted from required disclosure under the Act or other law may still be withheld from disclosure. Id. § 261.201(l)(2). Thus, we will address your argument under section 552.108 of the Government Code for the information you have marked in report number 09-27792. Section 552.108(a)(1) 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 claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You inform this office that report number 09-27792 relates to a pending criminal prosecution. Based on your representations and our review, we determine release of the information you have marked in report number 09-27792 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 that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Therefore, section 552.108(a)(1) of the Government Code is generally applicable to the information you have marked in report number 09-27792. 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). Section 552.108(c) refers to the basic front-page information held to be public in Houston Chronicle, and includes, but is not limited to, the charge, the details of the arrest, and a detailed description of the offense. See 531 S.W.2d at 186-88; see also Open Records Decision No. 127 (1976) (summarizing types of information deemed public by Houston Chronicle). The department must release basic information, even if the information does not literally appear on the front page of an offense or arrest report. We note the information being released in report number 09-27792 does not contain the charge, the details of the arrest, or a sufficient portion of the narrative to satisfy the requirement that basic information be released. See ORD 127. Accordingly, we determine the department must release the charge, the details of the arrest, and a sufficient portion of the narrative to encompass a detailed description of the offense to satisfy the required release of basic information pursuant to Houston Chronicle. Thus, with the exception of the charge, the details of the arrest, and a detailed description of the offense, the department may withhold the information you have marked in report number 09-27792 under section 552.108(a)(1) of the Government Code. In summary, the department must withhold report number 10-6239 under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. The department must withhold the identity of the reporting party in report number 09-27792, which we have marked, under section 552.101 of the Government Code in conjunction with section 261.201(l)(3) of the Family Code. With the exception of the charge, the details of the arrest, and a detailed description of the offense, the department may withhold the information you have marked in report number 09-27792 under section 552.108(a)(1) of the Government Code. The remaining 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, Kristi L. Wilkins Assistant Attorney General Open Records Division KLW/ag Ref: ID# 456420 Enc. Submitted documents c: Requestor (w/o enclosures) Footnotes1. We note the requestor has a special right of access to the information being released in this instance. See Fam. Code § 261.201(k). Because such information is confidential with respect to the general public, if the department receives another request for this information from a different requestor, the department must again seek a ruling from this office.
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