 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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October 5, 2012 Ms. Michele Tapia Assistant City Attorney City of Carrollton 1945 East Jackson Road Carrollton, Texas 75006 OR2012-15858 Dear Ms. Tapia: 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# 468145. The City of Carrollton (the "city") received requests from two requestors for two specified reports and other related family-violence information. You claim the requested information is excepted from disclosure under sections 552.101, 552.103, 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 public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses confidentiality provisions such as section 58.007 of the Family Code. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. Section 58.007(c) reads as follows: 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. Fam. Code § 58.007(c). Upon review, we find you have failed to establish any of the submitted documents involves alleged juvenile delinquent conduct occurring after September 1, 1997. See id. § 51.03(a), (b) (defining "delinquent conduct" and "conduct indicating a need for supervision"). Thus, none of the submitted information is confidential under section 58.007, and the city may not withhold it under section 552.101 on that ground. Section 552.101 of the Government Code also encompasses section 261.201 of the Family Code, which provides in relevant part as follows: (a) [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: (1) any personally identifiable information about a victim or witness under 18 years of age unless that victim or witness is: (A) the child who is the subject of the report; or (B) another child of the parent, managing conservator, or other legal representative requesting the information; (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). Upon review, we find report numbers 2012052375 and 2012052977 were used or developed in investigations of alleged or suspected child abuse or neglect by the city's police department under chapter 261 of the Family Code. See id. §§ 101.003(a) (defining "child" for purposes of section 261.201), 261.001(1) (defining "abuse" for purposes of section 261.201 of Family Code), 261.001(4) (defining "neglect" for purposes of section 261.201 of Family Code). Thus, this information is within the scope of section 261.201(a). One of the requestors is a parent of the child victims listed in these reports, and the other requestor is that parent's attorney. The parent at issue was suspected of committing the alleged or suspected abuse or neglect in report number 2012052375. Therefore, we determine the requestors do not have a right of access to this information under section 261.201(k). See id. § 261.201(k). Accordingly, we conclude the city must withhold report number 2012052375 from the requestors under section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). However, the parent at issue is not alleged to have committed the suspected abuse in report number 2012052977. Thus, the city may not withhold this information from the requestors on the basis of section 261.201(a). See id. § 261.201(k). Section 261.201(l)(3) provides the identity of the reporting party must be withheld. See id. § 552.201(l)(3). Therefore, the city must withhold the identifying information of the reporting party in report number 2012052977, which we have marked, under section 552.101 of the Government Code in conjunction with section 261.201(1)(3). In addition, section 261.201(l)(2) provides 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). Therefore, we must address your argument to withhold the remaining information in report number 2012052977 under section 552.103 of the Government Code. However, we will first address your argument under section 552.108 of the Government Code for report number 2011-005120. You assert report number 2011-005120 is excepted from disclosure under section 552.108 of the Government Code. Section 552.108(a) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Generally, 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 Gov't Code §§ 552.108(a)(1), (b)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state the Carrollton Municipal Court Prosecutor objects to the release of report number 2011-005120 because it is a pending criminal matter. Based on this representation, we conclude the 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 that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). 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. Thus, with the exception of the basic front-page offense and arrest information, the city may withhold report number 2011-005120 under section 552.108(a)(1). (1) Section 552.103 of the Government Code provides in part as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. Gov't Code § 552.103(a), (c). The governmental body has the burden of providing relevant facts and documents to show the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated on the date the governmental body received the request for information and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The governmental body must meet both prongs of this test for information to be excepted from disclosure under section 552.103(a). You indicate the remaining information in report number 2012052977 is excepted from disclosure under section 552.103 of the Government Code because it is part of a pending criminal prosecution before the city's municipal court. However, upon review, we find you have not established the information relates to that pending prosecution. Accordingly, the city may not withhold any the remaining information in report number 2012052977 under section 552.103. To conclude, the city must withhold the information we have marked under section 552.101 of the Government Code in conjunction with section 261.201(l)(3) of the Family Code but must release the remaining information in report number 2012052977 to the requestors. (2) The city must withhold report number 2012052375 under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. Finally, with the exception of basic information, the city may withhold report number 2011-005120 under section 552.108(a)(1) of the Government Code. 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, James L. Coggeshall Assistant Attorney General Open Records Division JLC/tch Ref: ID# 468145 Enc. Submitted documents c: Two Requestors (w/o enclosures)
1. As we are able to resolve this matter under section 552.108, we do not address your other claim for
exception of this information, except to note that basic information may not be withheld from public disclosure
under section 552.103 of the Government Code. Open Records Decision No. 597 (1991).
2. Because the requestors have a special right of access to this information, the city must again seek a
decision from this office if it receives a request for this information from different requestors. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |