 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 19, 2012 Ms. Rachel L. Lindsay Counsel for the City of McKinney Brown & Hofmeister, LLP 740 East Campbell Road, Suite 800 Richardson, Texas 75081 OR2012-20486 Dear Ms. Lindsay: 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# 475537 (ORR# 10-6240). The McKinney Police Department (the "department"), which you represent, received a request for records of five specified incidents involving the requestor and another named individual. You claim the requested 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 information you submitted. We first note the information at issue was the subject of a previous request for information, as a result of which this office issued Open Records Letter No. 2012-16731 (2012). In requesting the previous ruling, the department did not claim an exception to disclosure under section 552.108 of the Government Code. The Act does not permit selective disclosure of information to the public. See Gov't Code §§ 552.007(b), .021; Open Records Decision No. 463 at 1-2 (1987). Information that has been released to a member of the public may not subsequently be withheld from another member of the public, unless public disclosure of the information is expressly prohibited by law or the information is confidential under law. See Gov't Code § 552.007(a); Open Records Decision Nos. 518 at 3 (1989), 490 at 2 (1988). Section 552.108 is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions), 177 (1977) (statutory predecessor to Gov't Code § 552.108 subject to waiver). As such, section 552.108 neither prohibits public disclosure of information nor makes information confidential under law. Thus, in previously electing not to claim section 552.108 of the Government Code, the department waived that exception and may not withhold any of the submitted information under section 552.108. We also note the previous ruling concludes the department must withhold some of the submitted information under section 552.101 of the Government Code in conjunction with common-law privacy and section 261.201 of the Family Code. The previous ruling is based, however, on facts and circumstances that have changed. See Open Records Decision No. 673 at 6-7 (2001) (first type of previous determination under Gov't Code § 552.301(a) exists when, among other things, the law, facts, and circumstances on which the prior attorney general ruling was based have not changed since the issuance of the ruling). We therefore conclude none of the submitted information may be withheld from the present requestor on the basis of Open Records Letter No. 2012-16731. 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 exception encompasses information made confidential by other statutes, including sections 772.118, 772.218, and 772.318 of the Health and Safety Code. Chapter 772 of the Health and Safety Code authorizes the development of local emergency communication districts. Sections 772.118, 772.218, and 772.318 are applicable to emergency 9-1-1 districts established in accordance with chapter 772. See Open Records Decision No. 649 (1996). These sections make the originating telephone numbers and addresses of 9-1-1 callers furnished by a service supplier confidential. Sections 772.118, 772.218, and 772.318 are not applicable, however, to information furnished by the 9-1-1 caller. Id. at 2; see Open Records Decision No. 649 at 3 (1996) (language of confidentiality provision controls scope of its protection). Section 772.118 applies to an emergency communication district for a county with a population of more than two million. Section 772.218 applies to an emergency communication district for a county with a population of more than 860,000. Section 772.318 applies to an emergency communication district for a county with a population of more than 20,000. Although you indicate the submitted information includes the originating telephone number and address of a 9-1-1 caller furnished by a service supplier, you do not inform us whether the City of McKinney (the "city") is part of an emergency communication district established under section 772.118, section 772.218, or section 772.318 of the Health and Safety Code. Nevertheless, we will rule conditionally. Thus, if the city is part of an emergency communication district established under chapters 772.118, 772.218, or 772.318 of the Health and Safety Code, then the department must withhold any telephone number or address of a 9-1-1 caller that was furnished by a service supplier under section 552.101 of the Government Code in conjunction with sections 772.118, 772.218, or 772.318 of the Health and Safety Code. But if the city is not part of an emergency communication district established under chapters 772.118, 772.218, or 772.318 or if the telephone number or address at issue was not furnished by a 9-1-1 service supplier, then the department may not withhold the telephone number or address under section 552.101 on the basis of sections 772.118, 772.218, or 772.318. Section 552.101 of the Government Code also encompasses section 261.201 of the Family Code, which provides in part: (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 [the Family 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 [chapter 261 of the Family Code] 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 [chapter 261 of the Family Code] 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). We find some of the submitted information consists of a report of alleged or suspected child abuse made under chapter 261 of the Family Code, so as to be generally confidential under section 261.201(a)(1). See id. §§ 101.003 (defining "child" for purposes of Fam. Code title 5), 261.001(1) (defining "abuse" for purposes of Fam. Code ch. 261). In this instance, however, the requestor is a parent of the alleged victims of child abuse and is not accused of committing the abuse. Therefore, pursuant to section 261.201(k) of the Family Code, the submitted information may not be withheld from this requestor under section 552.101 of the Government Code on the basis of section 261.201. See Fam. Code 261.201(k). Section 261.201(l)(2) provides, however, that any information excepted from disclosure under the Act or other law must be withheld. See id. § 261.201(l)(2). Section 552.101 of the Government Code also encompasses common-law privacy, which protects information that is highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and of no legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both elements of the test must be established. See id. at 681-82. Common-law privacy encompasses the specific types of information held to be intimate or embarrassing in Industrial Foundation. See id. at 683 (information related to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has determined other types of information also are private under section 552.101. See generally Open Records Decision No. 659 at 4-5 (1999) (summarizing information attorney general has held to be private). We conclude the information we have marked is highly intimate or embarrassing and not a matter of legitimate public interest. Therefore, the department must withhold the marked information under section 552.101 of the Government Code in conjunction with common-law privacy. Although the department would ordinarily be required to withhold some of the remaining information on this same basis, the requestor is a parent of the child to whom the remaining information pertains. As such, the requestor has a special right of access under section 552.023 of the Government Code to information the department would be required to withhold from the public to protect her child's privacy. See Gov't Code § 552.023; Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself). (1) Therefore, the department may not withhold any of the remaining information under section 552.101 in conjunction with common-law privacy. In summary, the department must withhold (1) any telephone number or address of a 9-1-1 caller that was furnished by a service supplier under section 552.101 of the Government Code in conjunction with sections 772.118, 772.218, or 772.318 of the Health and Safety Code if the city is part of an emergency communication district established under chapters 772.118, 772.218, or 772.318 of the Health and Safety Code and (2) the information we have marked under section 552.101 in conjunction with common-law privacy. The rest of the submitted information must be released. (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, James W. Morris, III Assistant Attorney General Open Records Division JWM/bhf Ref: ID# 475537 Enc: Submitted information c: Requestor (w/o enclosures) Footnotes1. Section 552.023 provides in part that "[a] person or a person's authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interests." Gov't Code § 552.023(a). 2. Because the requestor has a right of access to information the department would be required to withhold from the general public, the department should resubmit this same information and request another decision if it receives another request for this information from a different requestor. See Gov't Code §§ 552.301(a), .302.
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