December 17, 2012

Ms. L. Carolyn Nivens

Counsel for the City of League City

Ross, Banks, May, Cron & Cavin, P.C.

2 Riverway, Suite 700

Houston, Texas 77056-1918

OR2012-20247

Dear Ms. Nivens:

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# 473801 (League City Reference No. 2290)

The League City Police Department (the "department"), which you represent, received a request for five specified incident reports. You state you have released some information.  You claim the submitted information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also received and considered comments submitted by the requestor. See Gov't Code § 552.304 (providing that interested party may submit written comments regarding why information should or should not be released).

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. This section encompasses information protected by other statutes, such as 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, 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[.]

Fam. Code § 261.201(a), (k), (l)(2). Upon review, we find the information submitted in Exhibit B was used or developed in investigations of suspected child abuse under chapter 261 of the Family Code. See id. § 261.001(1)(E) (definition of child abuse includes indecency with a child under Penal Code section 21.11 and sexual assault under Penal Code section 22.011); Penal Code §§ 22.011(c)(1) (defining "child" for purposes of Penal Code section 22.011 as person under 17 years of age), 21.11(a) (defining "child" for purposes of Penal Code section 21.11 as a person under 17 years of age). Thus, Exhibit B is within the scope of section 261.201 of the Family Code. However, we find you have failed to demonstrate how the information in Exhibit A was used or developed in an investigation of alleged or suspected child abuse under chapter 261 of the Family Code. Accordingly, the department may not withhold Exhibit A under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code.

Furthermore, the requestor is a parent of the child who is the subject of the reports in Exhibit B and is not alleged to have committed the suspected abuse. Therefore, the department may not use section 261.201(a) to withhold information at issue from this requestor. See Fam. Code § 261.201(k). However, section 261.201(l)(2) provides any information otherwise excepted from required disclosure under the Act or other law must also be withheld from disclosure. Id. § 261.201(l)(2). Therefore, pursuant to section 261.201(l)(2), we will consider your remaining arguments against disclosure of Exhibit B. We will also consider your other arguments for the information submitted in Exhibit A.

Section 552.101 of the Government Code also encompasses the common-law right to 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). Common-law privacy protects the types of information held to be intimate or embarrassing in Industrial Foundation. See id. at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). In Open Records Decision No. 393 (1983), this office concluded that, generally, only that information which either identifies or tends to identify a victim of sexual assault or other sex-related offense may be withheld under common law privacy; however, because the identifying information was inextricably intertwined with other releasable information, the governmental body was required to withhold the entire report. ORD 393 at 2; see Open Records Decision No. 339 (1982); see also Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied) (identity of witnesses to and victims of sexual harassment was highly intimate or embarrassing information and public did not have a legitimate interest in such information); Open Records Decision No. 440 (1986) (detailed descriptions of serious sexual offenses must be withheld).

Upon review, we find none of the information in Exhibit A is highly intimate or embarrassing and not of legitimate public concern. Therefore, no portion of Exhibit A may be withheld under section 552.101 in conjunction with common-law privacy. As for Exhibit B, the submitted information reveals the requestor knows the identity of the alleged victim. Thus, withholding only the alleged victim's identifying information from the requestor would generally not preserve the alleged victim's common-law right to privacy. However, as noted above, the requestor is a parent of the minor child whose private information is at issue. As such, pursuant to section 552.023(b) the requestor has a special right of access to information that would ordinarily be withheld to protect her child's privacy interests, and such information cannot be withheld from her on that basis. See Gov't Code § 552.023(b) (governmental body may not deny access to person to whom information relates or person's agent on grounds that information is considered confidential by privacy principles). Accordingly, the department may not withhold any of the submitted information from this requestor under section 552.101 on the basis of common-law privacy.

Section 552.108(a)(2) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication." Id. § 552.108(a)(2). A governmental body claiming section 552.108(a)(2) must demonstrate the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. See id. § 552.301(e)(1)(A) (governmental body must provide comments explaining why exceptions raised should apply to information requested). You state the reports in Exhibits A and B relate to cases that did not result in charges being filed and concluded without convictions or deferred adjudication. Based on these representations and our review, we find section 552.108(a)(2) is applicable to the information at issue. ⁽¹⁾

However, as you acknowledge, section 552.108 of the Government Code does not except from disclosure basic information about an arrested person, an arrest, or a crime. Id. § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976). See Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). Therefore, with the exception of basic information, which must be released, the department may withhold the submitted information under section 552.108(a)(2) of the Government 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,

Paige Lay

Assistant Attorney General

Open Records Division

PL/tch

Ref: ID# 473801

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

1. As our ruling is dispositive, we need not address your remaining arguments against disclosure.

2. As noted, the requestor in this instance has a special right of access to some of the information being released. Accordingly, if the department should receive another request for this information from a different requestor, the department must again request an opinion from this office.

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