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June 30, 2000

Mr. Mark A. Flowers
Assistant City Attorney
City of Midland
P.O. Box 1152
Midland, Texas 79702-1152

OR2000-2488

Dear Mr. Flowers:

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# 138228.

The City of Midland (the "city") received a request for information related to a drowning incident in which the victim was a juvenile. You claim that the information is excepted from disclosure under section 58.007 of the Family Code, in conjunction with section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses confidentiality provisions such as Family Code section 58.007. 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.

Here, the requested information does not involve juvenile offender conduct that occurred after September 1, 1997. Therefore, the records are not made confidential by section 58.007 of the Family Code. Accordingly, because you have asserted no other exceptions from disclosure, the city must release the information to the requestor.

We note that the city is using section 58.007 of the Family Code to attempt to withhold all records involving juveniles. Family Code section 51.04(a) states that the Juvenile Justice Code, Title 3 of the Family Code, "covers the proceedings in all cases involving the delinquent conduct or conduct indicating the need for supervision engaged in by a person who was a child within the meaning of [Title 3] at the time he engaged in the conduct." Thus, section 58.007 deems confidential law enforcement records from all cases involving a child engaging in delinquent conduct or conduct indicating the need for supervision. Therefore, this section of the Family Code only applies to juvenile offenders, not juvenile witnesses, complainants or victims. This office has repeatedly denied the city's claims of exception under section 58.007 when the records involve juvenile witnesses and victims, and clearly laid out when this section may be properly invoked. The Public Information Act does not authorize a governmental body to seek an attorney general decision if the governmental body reasonably believes that the requested information is not within an exception to required public disclosure. In Open Records Decision No. 665 (2000), this office concluded that a governmental body cannot reasonably believe that information is protected from required public disclosure when the only argument the governmental body makes is identical to an argument repeatedly made by the governmental body and consistently dismissed by the attorney general, and there has been no change in facts or law suggesting that the attorney general may begin to interpret the argument differently. Open Records Decision No. 665 at 4 (2000). We will no longer consider the city's assertion under section 58.007 of the Family Code when used in an attempt to withhold records that do not involve juvenile offenders. If you have additional questions regarding section 58.007 of the Family Code, please contact the Open Government Hotline, toll free, at 877/673-6839 for immediate clarification.

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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/ljp

Ref: ID# 138228

Encl. Submitted documents

cc: Ms. Vickie Washington
403 Humble Apt. D
Midland, Texas 79705-8850
(w/o enclosures)


 

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