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December 20, 2000

Ms. Jan Clark
Assistant City Attorney
City of Houston
P.O. Box 1562
Houston, Texas 77251-1562

OR2000-4793

Dear Ms. Clark:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 142436.

The Houston Police Department (the "department") received a written request for the mug shot of a certain convicted pedophile and "any training tapes made as a result of" the pedophile's convictions. You state that the department will release the requested mug shot. You contend, however, that the requested videotape is excepted from required public disclosure pursuant to sections 552.101 and 552.108 of the Government Code.

You first contend that the videotape at issue is made confidential under section 261.201(a) of the Family Code and thus must be withheld from the public pursuant to section 552.101 of the Government Code.(1)

Section 261.201(a) of the Family Code provides:

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 [of a child] 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. [Emphasis added.]

After reviewing the videotape at issue, we conclude that the department did not create the videotape in connection with an investigation under chapter 261. In fact, it is made clear at the outset that the purpose of the videotape was not to further any criminal investigation of the convicted pedophile, but rather was merely to serve as a law-enforcement training tool. Because the videotape was not created during the course of a chapter 261 investigation, we conclude that no portion of the videotape is made confidential under section 261.201 of the Family Code.

You next contend that the department may withhold the entire videotape pursuant to section 552.108 of the Government Code. Section 552.108(a)(1) of the Government Code excepts from required public disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime." You argue that the videotape comes within the protection of section 552.108(a)(1) because the videotape

would be of immense value to anyone who wished to sexually assault children undetected by law enforcement or the public. To disclose this information to the public may not interfere with the detection, investigation or prosecution of a single specific crime but rather an untold number of crimes in the future.

As noted above, however, the videotape does not pertain to the investigation of any crime committed by the convicted pedophile. Nor have you demonstrated that the videotape directly pertains to any other pending criminal investigation. We therefore conclude that section 552.108(a)(1) is inapplicable here.

Section 552.108(b)(1) of the Government Code provides an exception to required public disclosure for an internal record of a law-enforcement agency that is maintained for internal use in matters relating to law enforcement or prosecution if "release of the internal record or notation would interfere with law enforcement or prosecution." To withhold internal records and notations of law enforcement agencies and prosecutors under section 552.108, a governmental body must demonstrate how release of the information would interfere with law enforcement and crime prevention unless the records supplied this explanation on their face. See Open Records Decision No. 508 at 2 (1988). You assert that the videotape "is a training tool made by [the department] to train those officers and officials and other workers who are charged with detecting, investigating and prosecuting the sexual assault of children." You have not explained, nor could this office discern, how the release of the videotape would interfere with law-enforcement efforts. Because you have not met your burden under section 552.108(b)(1), we conclude that no portion of the videotape may be withheld under this exception.

We note, however, that in portions of the videotape the pedophile identifies some of his victims. The identity of a victim of sexual assault is protected from public disclosure pursuant to common law privacy as incorporated into section 552.101 of the Government Code.(2) Open Records Decision Nos. 393 (1983), 339 (1982). Accordingly, the department must delete all references to the identities of the pedophile's victims. The remaining portions of the videotape must be released to the requestor.

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,

Nathan E. Bowden
Assistant Attorney General
Open Records Division

NEB/RWP/seg

Ref: ID# 142436

Encl. Submitted videotape

cc: Ms. Gina Treadgold
Field Producer
ABC News
P.O. Box 120
Thompsons, Texas 77481
(w/o enclosures)


 

Footnotes

1. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."

2. Common law privacy protects information that is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and the information is of no legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).
 

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