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June 15, 2000

Mr. Steven D. Monté
Assistant City Attorney
City of Dallas
2014 Main Street, Room 206
Dallas, Texas 75201

OR2000-2336

Dear Mr. Monté:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136197.

The Dallas Police Department (the "department") received a request for "all offense reports that originated from the Oak Hollow Apartments . . . for the years 1994 through 1998." You state that all reports other than those involving privacy issues or juvenile suspects have been released, but claim that those reports you seek to withhold are excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.(1)

You have submitted for our review two incident reports involving juvenile runaways, one involving a juvenile suspected of assault, one involving an attempted suicide, and one involving an aggravated sexual assault on a juvenile. We will first address those cases in which a juvenile offender is identified, including here the runaways and the juvenile suspected of assault.

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses confidentiality provisions in the Family Code. 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. Gen. Laws 4179, 4187 (Vernon). It chose not to make this 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 of the Family Code. Therefore, of the specific samples you provided, two must be withheld in their entirety pursuant to the former section 51.14 of the Family Code. We have marked those records. And, although you provide no samples of juvenile records relating to juvenile conduct that occurred on or after September 1, 1997, any such records responsive to the request, as to which no applicable exceptions to confidentiality exist, must be withheld in their entirety pursuant to section 58.007(c) of the Family Code. Any records relating to juvenile conduct on or after January 1, 1996, but before September 1, 1997, are not protected from disclosure under the Family Code, but may be protected by other exceptions, for instance, a common law right to privacy (see discussion below).

Section 552.101 encompasses common law privacy and excepts from disclosure private facts about an individual. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Therefore, information may be withheld from the public when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Id. at 685; Open Records Decision No. 611 at 1 (1992). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation includes information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683. Information that either identifies or tends to identity a victim of sexual assault is protected from public disclosure based on the common law right to privacy. See Open Records Decision Nos. 393 (1983), 339 (1982).

The incident report dated October 22, 1996, involved juvenile conduct occurring during the gap in the confidentiality afforded under the Family Code. Relating to a runaway, it does not include any information of the type considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation; therefore, that incident report may not be withheld pursuant to section 552.101 and must be released to the requestor. The last two incident reports submitted do contain information of the type considered intimate and embarrassing under Industrial Foundation. Those two reports should be redacted to de-identify the victim in each case. We have marked the documents to de-identify. The redacted copies must be released.

In summary, you must withhold in their entirety records relating to juvenile conduct that occurred prior to January 1, 1996, and on or after September 1, 1997. Records relating to juvenile conduct occurring between those dates are not protected from disclosure under the Family Code, but may be protected by a common law right to privacy. Records implicating a common law right to privacy as expressed in Industrial Foundation must be de-identified. Because you raise no other exceptions to required disclosure,(2) responsive information not protected from disclosure under section 552.101, whether in conjunction with section 51.14 or 58.007 of the Family Code or pursuant to Industrial Foundation, 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).

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,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/pr

Ref: ID# 136197

Encl. Submitted documents

cc: Mr. Stephen J. Gugenheim
Rubin Gugenheim & Owens
Attorneys & Counselors
701 Commerce Street, Suite 640
Dallas, Texas 75202
(w/o encl``osures)


 

Footnotes

1. We assume that the records submitted to this office are a "representative sample" of the requested records and that the sample is truly representative of the requested records as a whole. See Gov't Code 552.301(e)(1)(D); Open Records Decision Nos. 499 (1988), 497 (1988). Here, we do not address any other requested records to the extent that those records contain substantially different types of information than those submitted to this office.

2. You do not, for instance, raise section 552.108 to withhold any of the submitted information, presumably due to the age of the incident reports.
 

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