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November 4, 1999

Mr. Monty Wade Sullivan
Assistant City Attorney
City of Houston
Legal Department
P.O. Box 1562
Houston, Texas 77251-1562

OR99-3129

Dear Mr. Sullivan:

You have asked 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# 129181.

The City of Houston Police Department (the "department") received a request for "one hundred and eighty-seven" specified offense reports related to a specific address. In response to the request, you submit to this office for review a representative sample of the information at issue. You state that the "requestor will be provided with the public release information page of the offense reports."(1) However, you assert that the remaining information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions and arguments you have raised and reviewed the submitted information. (2)

Section 552.108, the "law enforcement" exception excepts from required public disclosure

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if:

(1) release of the information would interfere with the detection, investigation, or prosecution of crime; [or]

(2) 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; or

. . . .

(c) This section does not except from the requirements of section 552.021 information that is basic information about an arrested person, an arrest, or a crime.

Gov't Code 552.108. 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). You state that the responsive information contained in Exhibit 2 concerns offense investigations which "are either still considered open, or have been placed on inactive status, in which case HPD intends to conduct further investigations." Based on your representation, we find that release of the requested information would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases). Therefore, we conclude that, except for the front page information, the department may withhold Exhibit 2 from disclosure under section 552.108(a)(1).

As for the responsive information contained in Exhibit 3, you contend that the information is subject to section 552.108(a)(2). A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. In your brief to this office, you explain that the investigations of the offenses at issue "did not result in convictions or deferred adjudications." In reliance on your representation in support of the claimed exception, we conclude that you have met your burden of establishing the applicability of section 552.108(a)(2) to the requested information. Although section 552.108(a) authorizes you to withhold the submitted information from disclosure, you may choose to release all or part of the information at issue that is not otherwise confidential by law. See Gov't Code 552.007.

We next consider your claimed exception under section 552.101 in conjunction with an applicable statute for the offense reports submitted within Exhibit 4. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Although you assert that section 58.007(c) of the Family Code makes the requested information confidential, we find that section 58.007(c) is inapplicable to the information at issue. 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. 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). This office concluded in 1996 that section 58.007 of the Family Code, as enacted by the Seventy-fourth Legislature, does not make confidential juvenile law enforcement records relating to conduct that occurred on or after January 1, 1996. Open Records Decision No. 644 (1996). The Seventy-fifth Legislature, however, amended section 58.007 to once again make juvenile law enforcement records confidential, effective September 1, 1997. Act of June 2, 1997, 75th Leg., R.S., ch. 1086, 1997 Tex. Sess. Law Serv. 4179, 4187 (Vernon).(3) It chose not to make this most recent amendment retroactive in application. Consequently, law enforcement records pertaining to juvenile conduct that occurred between January 1, 1996 and September 1, 1997, are not subject to the confidentiality provisions of either the former section 51.14(d) or the current section 58.007(c) of the Family Code. Offense report number 065868496S involves juvenile conduct that occurred in May 1996; therefore, the report is not confidential under either section 51.14(d) or 58.007(c). Furthermore, offense report number 103313097N does not involve juvenile conduct. Therefore, the offense reports submitted within Exhibit 4 may not be withheld under section 552.101 in conjunction with 58.007(c) of the Family Code.

We note, however, that section 261.201(a) of the Family is applicable to offense report number 103313097N, within Exhibit 4, but not offense report number 065868496S.(4) Section 261.201(a) states in relevant part as follows:

(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, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

Fam. Code 261.201(a). We believe that the submitted offense reports consist of reports, records, and working papers used or developed in an investigation made under chapter 261 of the Family Code. Because you have not cited any specific rule that the investigating agency has adopted with regard to the release of this type of information, we assume that no such regulation exists. Given that assumption, the offense reports within Exhibit 4 are confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (construing predecessor statute). Accordingly, the department must withhold offense report number 103313097N from disclosure under section 552.101 of the Government Code as information made confidential by law.

We are resolving this matter with an informal letter ruling rather than with a published open records decision.(5) 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,

Sam Haddad
Assistant Attorney General
Open Records Division

SH/nc

Ref.: ID# 129181

encl. Submitted documents

cc: Mr. Mark T. Murray
Abraham, Watkins, Nichols, Sorrels, Mathews & Friend
800 Commerce Street
Houston, Texas 77002-1776
(w/o enclosures)


 

Footnotes

1. As you have noted, basic information normally found on the front page of an offense report, including a detailed description of the offense, is generally considered public. See Gov't Code 552.108(c); Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976); Open Records Decision No. 127 (1976).

2. You have submitted responsive records and state that "[t]hose offense reports that the City seeks to withhold under section 552.108(a)(1) are attached as Exhibit 2, those that the City seeks to withhold under section 552.108(a)(2) are attached as Exhibit 3, and those that the City seeks to withhold under section 552.101 are attached as Exhibit 4."

3. The Seventy-sixth Legislature also amended section 58.007(c). Act of May 26, 1999, 76th Leg., R.S., ch. 815, 1, 1999 Tex. Sess. Law Serv. 3448 (Vernon) (to be codified as an amendment to Fam. Code 58.007). The current amendments have no impact on the discussion here.

4. The Office of the Attorney General will raise an exception on behalf of a governmental body when necessary to protect third-party interests. See generally Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

5. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
 

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