 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
August 30, 2012 Ms. Judith N. Benton Assistant City Attorney City of Waco P.O. Box 2570 Waco, Texas 76702-2570 OR2012-13778 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# 463696 (City of Waco Reference # LGL-12-931). The Waco Police Department (the "department") received a request for a specified report. You state you will release some of the requested information. You claim that the submitted information is excepted from disclosure under section 552.108 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." (1) Gov't Code § 552.101. Section 552.101 encompasses information protected by other statutes, including section 58.007 of the Family Code, which provides for the confidentiality of juvenile law enforcement records related to delinquent conduct or conduct indicating a need for supervision that occurred on or after September 1, 1997. See Open Records Decision No. 680 at 4 (2004); see also Fam. Code § 51.03(a), (b) (defining "delinquent conduct" and "conduct indicating a need for supervision"). Section 58.007 provides in relevant part: (c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapters B, D, and E. . . . (e) Law enforcement records and files concerning a child may be inspected or copied by a juvenile justice agency as that term is defined by Section 58.101, a criminal justice agency as that term is defined by Section 411.082, Government Code, the child, and the child's parent or guardian. . . . (j) Before a child or a child's parent or guardian may inspect or copy a record or file concerning the child under Subsection (e), the custodian of the record or file shall redact: (1) any personally identifiable information about a juvenile suspect, offender, victim, or witness who is not the child; and (2) any information that is excepted from required disclosure under [the Act], or other law. Id. § 58.007(c), (e), (j). For purposes of section 58.007(c), "child" means a person who is ten years of age or older and under seventeen years of age at the time of the reported conduct. See id. § 51.02(2). Upon review, we find the submitted information is a law enforcement record that involves a juvenile accused of delinquent conduct that occurred after September 1, 1997; and therefore, is subject to section 58.007(c). However, the requestor is the parent of the juvenile offender in the submitted report. Under section 58.007(e) of the Family Code, a child's parent has a right to inspect or copy law enforcement records concerning her own child. See id. § 58.007(e). Accordingly, the department may not withhold the submitted information from this requestor pursuant to section 58.007(c). However, section 58.007(j)(2) of the Family Code provides that information subject to any other exception to disclosure under the Act or other law must be redacted. See id. § 58.007(j)(2). Accordingly, we will address your remaining arguments against disclosure. Section 552.101 also encompasses section 261.201 of the Family Code which provides, in relevant part, as follows: [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. Id. § 261.201(a), (k), (l)(2)-(3). Upon review, we find the submitted information was used or developed in an investigation of child abuse under chapter 261 of the Family Code. See id. § 261.001(1) (defining "abuse" for purposes of Fam. Code ch. 261). Thus, this information is subject to chapter 261 of the Family Code. We note the requestor is a parent of the child victim listed in the information and is not alleged to have committed the abuse. Therefore, pursuant to section 261.201(k), the information at issue may not be withheld from this requestor on the basis of section 261.201(a). See Fam. Code § 261.201(k). However, the department must withhold the identity of the person who made the report of abuse. Id. § 261.201(l)(3). 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). Accordingly, we will address your argument under section 552.108 of the Government Code for the submitted incident report. 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 state the submitted information relates to a pending criminal case. Based on your representation and our review, we find the release of the submitted 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 that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Thus, section 552.108(a)(1) is applicable to the submitted 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, and includes the identity of the complainant. See 531 S.W.2d at 186-88. Thus, with the exception of the basic front page offense and arrest information, you may withhold the submitted information from disclosure based on section 552.108(a)(1) of the Government Code. As noted above, the identity of a party who makes a report of abuse must be withheld under section 261.201(l)(3) of the Family Code. See Fam. Code § 261.201(l)(3). Thus, in releasing basic information, the department must withhold the identity of the reporting party under section 261.201(l)(3) of the Family Code. (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, Jeffrey W. Giles Assistant Attorney General Open Records Division JWG/tch Ref: ID# 463696 Enc. Submitted documents c: Requestor (w/o enclosures) Footnotes1. 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. We note this requestor has a special right of access under sections 58.007(e) and 261.201(k) of the Family Code to the information being released. Therefore, if the department receives another request for this information from a different requestor, the department must again seek a ruling from this office.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |