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December 13, 2000

Ms. Diane Eagleton, Supervisor
North Richland Hills Police Department
P.O. Box 820609
North Richland Hills, Texas 76182-0609

OR2000-4694

Dear Ms. Eagleton:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 142197.

The North Richland Hills Police Department (the "department") received a request for all information that the department has regarding the requestor. The department seeks to withhold a portion of the information responsive to this request.

A governmental body that seeks to withhold requested information must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request. Gov't Code 301(b). The governmental body must also submit to the attorney general a copy of the specific information requested, or representative samples of the information if a voluminous amount of information was requested, not later than the 15th business day after the date of receiving the written request. Gov't Code 301(e)(1)(D).

The department received the written request for information on September 25, 2000. On October 9, 2000, this office received from the department information responsive to the request and comments raising section 552.101 of the Government Code. In these comments the department stated that it had released seventy-two pages of responsive information to the requestor, with certain information redacted. The department did not submit those seventy-two pages to this office at that time. On November 2, 2000, this office received from the department the seventy-two previously released pages of information, and further comment, raising section 552.108 of the Government Code.

Information which was redacted from the released materials was not timely provided to this office as required by section 552.301(e) of the Government Code. Failure to comply with the requirements of Government Code section 552.301 results in the presumption that the information is subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Gov't Code 552.302. A compelling reason is demonstrated where information is made confidential by other law, or where third party interests are at issue. Open Record Decision No. 150 (1977). See also Open Records Decision No. 586 (1991) (need of another governmental body to withhold requested information may provide compelling reason for nondisclosure under section 552.108).

As the department did not timely raise section 552.108 of the Government Code, and did not raise this exception to protect the interest of another governmental body, no information may be withheld under this exception. You indicate that you have redacted "addresses and phone numbers of the juveniles victims as well as the information of any witnesses," from the seventy-two pages of information which you released to the requestor. This type of information may be made confidential by statute. Confidential information is excepted from public release by section 552.101. Therefore, we will consider the application of section 552.101 of the Government Code to all of the submitted information.

Information is excepted from disclosure by section 552.101 "if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information made confidential by statute.

Offense report numbers 97086113 and 99072027 appear to be information subject to section 58.007 of the Family Code. Juvenile offender records held by law enforcement agencies are confidential under section 58.007(c) of the Family Code. Section 58.007(c) applies to juvenile law enforcement records concerning conduct that occurred on or after September 1, 1997 and reads as follows:

(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 Subchapter B.

As the suspects named in offense report numbers 97086113 and 99072027 were children at the time of the incidents investigated, and the incidents occurred after September 1, 1997, these reports must be withheld in their entirety under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code.

Offense report numbers 97049623, 97049670, 97049671 and 98005377 appear to be information subject to section 261.201 of the Family Code. This section of the Family Code governs release of information related to reports of child abuse or neglect. In pertinent part it reads:

(a) The 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.

We are of the opinion that offense report numbers 97049623, 97049670, 97049671 and 98005377 consist of reports, records, and working papers used or developed in an investigation made under chapter 261 of the Family Code. As you have not cited any specific rule that the department has adopted with regard to the release of this type of information, these records are presumed confidential in their entirety. See Open Records Decision No. 440 at 2 (1986). Accordingly, the department must withhold offense report numbers 97049623, 97049670, 97049671 and 98005377 under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code.

Offense report numbers 97076784 and 99033108 appear to be information subject to section 48.101 of the Human Resources Code, which provides as follows:

(a) The following information is confidential and not subject to disclosure under Chapter 552, Government Code:

(1) a report of abuse, neglect, or exploitation made under this chapter;

(2) the identity of the person making the report; and

(3) except as provided by this section, all files, reports, records, communications, and working papers used or developed in an investigation made under this chapter or in providing services as a result of an investigation.

(b) Confidential information may be disclosed only for a purpose consistent with this chapter and as provided by department or investigating state agency rule and applicable federal law.

Chapter 48 of the Human Resource Code provides for the investigation of abuse, exploitation or neglect of an elderly or disabled person. Hum. Res. Code 48.001. A "disabled person" is defined as an adult with a mental, physical or developmental disability. Hum. Res. Code 48.002(8). We conclude that offense report numbers 97076784 and 99033108 must be withheld under section 552.101 of the Government Code in conjunction with section 48.101 of the Human Resources Code.

The submitted information also includes three items, titled "criminal case display." These items appear to be printouts of criminal history record information. Criminal history record information generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC") is made confidential by statute. Title 28, Part 20 of the Code of Federal Regulations governs the release of criminal history record information ("CHRI") which states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety (the "DPS") maintains, except that the DPS may disseminate such records as provided in chapter 411, subchapter F of the Government Code. See also Gov't Code 411.087 (entities authorized to obtain information from DPS are authorized to obtain similar information from any other criminal justice agency; restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies). Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release the information except to another criminal justice agency for a criminal justice purpose, id. 411.089(b)(1). Other entities specified in Chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release the information except as provided by Chapter 411. See generally id. 411.090-.127. Thus, any CHRI generated by the federal government or another state may not be made available to the requestor except in accordance with federal regulations. See Open Records Decision No. 565 (1990). Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under Government Code chapter 411,

subchapter F of the Government Code. Therefore, the "criminal case display" sheets must be withheld under section 552.101 of the Government Code in conjunction with chapter 411, of the Government Code.

In summary, offense report numbers 97049623, 97049670, 97049671, 97076784, 97086113, 98005377, 99033108, and 99072027, as well as the "criminal case display" sheets must be withheld in their entirety under section 552.101 of the Government Code. All other responsive information must be released.

This letter ruling is limited to the particular records 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 records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/er

Ref: ID# 142197

Encl: Submitted documents

cc: Mr. Joseph Abner Justice
7701 Deaver Drive
North Richland Hills, Texas 76180
(w/o enclosures)


 

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