 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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September 12, 2012 Ms. J. Middlebrooks Assistant City Attorney City of Dallas 1400 South Lamar Dallas, Texas 75215 OR2012-14482 Dear Ms. Middlebrooks: 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# 464759 (DPD PIR # 2012-07443). The Dallas Police Department (the "department") received a request for all records related to a specified incident. You claim portions of the submitted information are excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. (1) Initially, we must address the department's obligations under section 552.301 of the Government Code. Section 552.301 describes the procedural obligations placed on a governmental body that receives a written request for information it wishes to withhold. See Gov't Code § 552.301. Pursuant to section 552.301(e), a governmental body must submit to this office within fifteen business days of receiving an open records request (1) general 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 id. § 552.301(e)(1)(D). The department received the request for information on June 21, 2012. We note July 4, 2012, was a holiday. This office does not count the date the request was received or holidays for the purpose of calculating a governmental body's deadlines under the Act. Accordingly, you were required to provide the information required by section 552.301(e) by July 13, 2012. However, the envelope in which the department provided the information required by subsection 552.301(e) was postmarked July 16, 2012. See id. § 552.308(a)(1) (describing rules for calculating submission dates of documents sent via first class United States mail, common or contract carrier, or interagency mail). Accordingly, we conclude the department failed to comply with the procedural requirements mandated by section 552.301 of the Government Code. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released unless a compelling reason exists to withhold the information from disclosure. 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, 381-82 (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); see also Open Records Decision No. 630 (1994). Generally, a compelling reason to withhold information exists where some other source of law makes the information confidential or where third party interests are at stake. Open Records Decision No. 150 at 2 (1977). Because the department's claim under section 552.101 of the Government Code can provide a compelling reason for non-disclosure under section 552.302, we will address your arguments under that exception. 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 information protected by other statutes, such as section 261.201 of the Family Code. Section 261.201 provides in part: [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. . . . (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). Upon review, we find the submitted information was used or developed by the department in an investigation of alleged or suspected child abuse. See id. § 261.001(1)(E) (defining "abuse" for purposes of chapter 261 of the Family Code as including offense of aggravated sexual assault under section 22.021 of the Penal Code); see also Penal Code § 22.021 (defining "child" for purposes of Penal Code section 22.021 as a person under 17 years of age). Therefore, we find the submitted information is within the scope of section 261.201 of the Family Code. However, the requestor is the child victim listed in the submitted information and is now an adult. Accordingly, the department may not withhold the submitted information from this requestor on the basis of subsection 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, which we have marked, under subsection 261.201(l)(3) of the Family Code. Id. § 261.201(l)(3). Additionally, subsection 261.201(l)(2) states that any information excepted from required disclosure under the Act or other law may still be withheld from disclosure. Id. § 261.201(l)(2). Thus, we will consider your remaining arguments under section 552.101 of the Government Code. You argue the dates of birth you have marked are excepted from disclosure under section 552.101 of the Government Code in conjunction with section 521.051 of the Business and Commerce Code. Section 521.051 of the Business and Commerce Code provides, (a) A person may not obtain, possess, transfer, or use personal identifying information of another person without the other person's consent and with intent to obtain a good, a service, insurance, an extension of credit, or any other thing of value in the other person's name. Bus. & Comm. Code § 521.051(a) (formerly Bus. & Comm. Code § 48.101(a)). "Personal identifying information" means "information that alone or in conjunction with other information identifies an individual" and includes an individual's date of birth. Id. § 521.002(a)(1)(A). You assert the marked dates of birth meet the definition of "personal identifying information" under section 521.002(a)(1) of the Business and Commerce Code. See id. § 521.002(a)(1). We note section 521.051(a) of the Business and Commerce Code does not prohibit the transfer of personal identifying information of another person unless the transfer is made with the intent to obtain a good, a service, insurance, an extension of credit, or any other thing of value in the other person's name without that person's consent. See id. § 521.051(a). In this instance, the department's release of the information at issue would be for the purpose of complying with the Act, and not "with intent to obtain a good, a service, insurance, an extension of credit, or any other thing of value[.]" See id. Therefore, section 521.051(a) of the Business and Commerce Code does not prohibit the department from transferring the requested information. Accordingly, the department may not withhold the marked dates of birth under section 552.101 of the Government Code in conjunction with section 521.051 of the Business and Commerce 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. We note, however, the dates of birth of members of the public are not excepted from required public disclosure under common-law privacy. See Open Records Decision No. 455 at 7 (1987) (home addresses, telephone numbers, dates of birth not protected under privacy). Upon review, we find the department has failed to demonstrate that the information at issue is intimate or embarrassing and of no legitimate public interest. Therefore, the department may not withhold the dates of birth in the remaining information under section 552.101 of the Government Code in conjunction with common-law privacy. In summary, the department must withhold the identity of the person who made the report of abuse, which we have marked, under section 552.101 of the Government Code in conjunction with subsection 261.201(l)(3) of the Family Code. The remaining information must be released to the requestor. (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, Kathryn R. Mattingly Assistant Attorney General Open Records Division KRM/dls Ref: ID# 464759 Enc. Submitted documents c: Requestor (w/o enclosures)
1. We assume the "representative sample" of records submitted to this office is truly representative of
the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records
letter does not reach, and therefore does not authorize the withholding of, any other requested records to the
extent those records contain substantially different types of information than that submitted to this office.
2. We note this requestor has a special right of access under section 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.
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