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August 21, 2000

Ms. Elizabeth Elam
Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
500 Throckmorton Street, Suite 3400
Fort Worth, Texas 76102-3821

OR2000-3190

Dear Ms. Elam:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 139925.

The City of Mansfield Police Department (the "department") received a request for any incident reports concerning two individuals and specified offenses. You claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

You claim that offense report 97-01266 is excepted from disclosure under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by statute. Section 261.201(a) of the Family Code provides that:

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

The requested information consists of an incident report used or developed in an investigation made under chapter 261 of the Family Code. Because you have not cited any specific rule that the department has adopted with regard to the release of this type of information, we assume that no such regulation exists. We therefore conclude that the offense report 97-01266 is confidential under section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (construing predecessor statute). Accordingly, the department must withhold the offense report from disclosure under section 552.101 of the Government Code as information made confidential by law.

You also claim that service report 97-10063 is excepted from disclosure under section 552.101 in conjunction with section 58.007 of the Family Code. This office has concluded that section 58.007(c) of the Family Code, as enacted by the Seventy-fourth Legislature, does not make juvenile law enforcement records relating to conduct that occurred on or after January 1, 1996 confidential. Open Records Decision No. 644 (1996). The Seventy-fifth Legislature, however, amended section 58.007 to make juvenile law enforcement records confidential, effective September 1, 1997. However, the Legislature 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 of the Family Code. Therefore, we conclude that service report 97-10063, which concerns delinquent conduct that occurred on May 27, 1997 is not confidential under section 58.007(c) of the Family Code. Thus, you may not withhold service report 97-10063 pursuant to section 58.007(c) of the Family Code.

In conclusion, you may withhold offense report 97-01266 under section 552.101 in conjunction with section 261.201(a) of the Family Code. However, you must release service report 97-10063 because section 58.007 of the Family Code does not apply and you have not shown the applicability of any other exceptions.

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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/er

Ref: ID# 139925

Encl. Submitted documents

cc: Mr. Ronnie Blasingame
ER Investigative Network
6777 Camp Bowie Blvd., Suite 406
Fort Worth, Texas 76116
(w/o enclosures)


 

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