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July 12, 1999

Ms. Lilia Ledesma-Gonzalez
Assistant City Attorney
City of McAllen
P.O. Box 220
McAllen, Texas 78505-0220

OR99-1925

Dear Ms. Ledesma-Gonzalez:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 127640.

The City of McAllen Police Department (the "department") received a request for all reports concerning a particular person. You assert that 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 documents submitted.

Prior to its repeal by the Seventy-fourth Legislature, section 51.14(d) of the Family Code provided for the confidentiality of juvenile law enforcement records.(1) Law enforcement records pertaining to conduct occurring before January 1, 1996 are governed by the former section 51.14(d), which was continued in effect for that purpose. Act of May 27, 1995, 74th Leg., R.S., ch. 262, 100, 1995 Tex. Gen. Laws 2517, 2591 (Vernon). Offense report number 92-002441 pertains to juvenile conduct that occurred before January 1, 1996. Therefore, section 51.14(d) is applicable to the documents. Section 51.14(d) provides in pertinent part:

    (d) Except as provided by Article 15.27, Code of Criminal Procedure, and except for files and records relating to a charge for which a child is transferred under Section 54.02 of this code to a criminal court for prosecution, the law-enforcement files and records [of a child] are not open to public inspection nor may their contents be disclosed to the public, but inspection of the files and records is permitted by:

      (1) a juvenile court having the child before it in any proceeding;

      (2) an attorney for a party to the proceeding; and

      (3) law-enforcement officers when necessary for the discharge of their official duties.

In this case, section 51.14(d) makes offense report number 92-002441 confidential. Therefore, the department must withhold these documents from the requestor as they concern juvenile conduct that occurred before January 1, 1996. As for offense report number 92-007620, section 51.14(d) does not apply to it because it does not involve a "child." Section 51.02(1)(A) defines "child" as a person who is ten years of age or older and under seventeen years of age.

You also assert that section 552.108 excepts offense report number 92-007620 from public disclosure. Section 552.108, the "law enforcement exception," excepts from public disclosure information 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. Gov't Code 552.108(a)(1). Generally, a governmental body claiming an exception under section 552.108 must reasonably explain, if the information does not supply the explanation on its face, 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(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). The offense report involves a theft offense that occurred on February 17, 1992. You state that offense report number 92-007620 relates to an ongoing criminal investigation. However, the statute of limitations for theft is five years from the date of the commission of the offense. Code Crim. Proc. art. 12.01(4)(A). The statute of limitations for criminal mischief is two years from the date of the commission of the offense. Code Crim. Proc. art. 12.02; Penal Code 28.03. You have not explained how or why release of the requested information would interfere with the investigation of an offense for which the statute of limitations has run. Thus, because you have not shown the applicability of section 552.108(a)(1), we conclude that you may not withhold the requested information under section 552.108(a)(1).

You also assert that section 552.108(b) excepts the requested records from public disclosure as they are internal records or notations of a law enforcement agency or prosecutor that are maintained for internal use in matters relating to law enforcement or prosecution. Again, we conclude that you have failed to establish the applicability of section 552.108(b). You may not withhold offense report number 92-007620 under section 552.108(b). Accordingly, except for a social security number and information excepted from disclosure by section 552.130 of the Government Code, the remaining information in offense report number 92-007620 must be released.

Social security numbers may be withheld in some circumstances under section 552.101 of the Government Code. A social security number or "related record" may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. We have no basis for concluding that any of the social security numbers in the file are confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure under section 552.101 of the Open Records Act on the basis of that federal provision. We caution, however, that section 552.353 of the Open Records Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the department pursuant to any provision of law, enacted on or after October 1, 1990.

Section 552.130 of the Public Information Act governs the release and use of information obtained from motor vehicle records. Section 552.130 provides in relevant part as follows:

    (a) Information is excepted from [required public disclosure] if the information relates to:

      (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state[.]

You must withhold the driver's license number if it relates to a Texas driver's license under section 552.130.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/nc

Ref: ID# 127640

Enclosures: Submitted documents

cc: Ms. Heidi Moseley
Jenkins & Gilchrist
100 W. Houston
San Antonio, Texas 78205
(w/o enclosures)


 

Footnotes

1. We note that the Seventy-fourth Legislature repealed section 51.14 of the Family Code and replaced it with section 58.007 of the Family Code. We note also that the Seventy-fifth Legislature amended section 58.007 of the Family Code.
 

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