Gloria Celeste Loving v. City of Houston

Affirmed and Majority and Dissenting Opinions filed January 8, 2008

Affirmed and Majority and Dissenting Opinions filed January 8, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00621-CV

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GLORIA CELESTE LOVING, Appellant

V.

CITY OF HOUSTON, Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 2006-48945

D I S S E N T I N G   O P I N I O N

This court should reverse and remand this case because appellee, the City of Houston  has not demonstrated that it met the burden of proof required to show that the requested information, an incident report, is excepted from disclosure under section 552.101 of the Texas Government Code.

Under the Texas Public Information Act, confidential information may be excepted from disclosure by law or by judicial decision.^[1] A governmental body, such as the City, seeking to withhold information under the Act must establish that the requested information is not subject to the Act or is excepted from disclosure.^[2]

The City has asserted that the incident report in question Aconcern[s] a child,@ and is excepted from disclosure under section 58.007(c) of the Texas Family Code.  However, the City did not furnish the incident report as summary judgment evidence to demonstrate that the report Aconcern[ed] a child,@ under section 58.007(c) of the Texas Family Code.  Rather, in support of its motion for summary judgment, the City attached two opinion rulings from the Attorney General=s office and correspondence between the parties and the Attorney General=s office.  In the two opinion rulings, the Attorney General advised the City that the requested information warranted confidentiality under Family Code section 58.007(c) based on assertions made by the City that such information involved a juvenile.  The Attorney General advised the City to withhold the information sought, as required by section 552.101 of the Texas Government Code.  In one letter, in response to appellant Gloria Celeste Loving=s assertions that the requested information involved both a non-juvenile and a juvenile co-actor who was certified as an adult, the Attorney General replied, A[T]his office cannot resolve disputes of fact in the open records process, and therefore, we must rely on the representations of the governmental body requesting our opinion, as we did in the two prior rulings.@

The appellate record does not contain the requested incident report at issue.  This court, as a reviewing court, cannot determine if the requested information concerns a child, as contemplated by section 58.007(c) of the Family Code, without the ability to review the requested incident report.  Therefore, this court should not reach the merits of whether the information in dispute falls within the confidentiality exception to the Texas Public Information Act.

The majority acknowledges that it has not reviewed the incident report in question.^[3] The majority observes that the parties do not dispute that the requested incident report concerns an investigation pertaining to a juvenile, Torres, who, at the time of the investigation, met the definition of a Achild@ as defined by section 51.02(2) of the Family Code.^[4] The parties also do not dispute that Torres was certified and tried as an adult.  Therefore, as a matter of law, a question remains as to whether the records of a juvenile, who has been certified and tried as an adult, concern a child and are to be withheld and excepted from disclosure.^[5]

The majority examines the legislative history of former Family Code section 51.14(d), the predecessor of current Family Code section 58.007, which provided in relevant part, A[E]xcept 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 are not open to public inspection nor may their contents be disclosed to the public . . . .@^[6]  The majority concludes that because section 51.14 was repealed by the legislature in section 58.007, then the section 51.14 language, which arguably would have excepted the incident report in this case, was excluded for a reason and is no longer applicable law.^[7] However, this court=s analysis in incomplete as applied to the facts of this case.

Under Texas Government Code section 552.101, information may be excepted from disclosure by law or by judicial decision.^[8] Because Family Code section 51.14 was repealed by section 58.007, and is no longer applicable law, unless there is a statute excepting disclosure of the incident report at issue, this report may be excepted from disclosure only by judicial decision.^[9] The trial court has authority to determine whether the requested information pertained to a juvenile, under Family Code section 58.007, and, therefore, was subject to withholding or disclosure under Government Code section 552.101.^[10] In this case, no judicial decision exists as to whether records of a juvenile who was certified and tried as an adult are subject to disclosure. 

Because the City did not proffer the incident report, the City did not meet the burden of proving that the incident report is excepted from disclosure by application of Family Code section 58.007(c).^[11] The City did not provide the requested incident report as summary judgment evidence, even for in-camera review.  Therefore, the trial court was in no position to determine whether the information Aconcern[ed] a child@ under the Family Code.^[12] Because the summary judgment evidence did not prove as a matter of law that the incident report is excepted from disclosure under section 58.007 of the Texas Family Code, the trial court erred in granting summary judgment.  Likewise, on the record before us, this court=s review is improper without the opportunity to examine the incident report.  Under the procedural regime proposed in the majority=s analysis, the Attorney General=s office may  determine whether documents are excepted from disclosure under the Texas Public Information Act, without any judicial review and without reviewing the documents in question.  This regime violates section 552.101 of the Government Code, providing exceptions to disclosure only by law or judicial decision.

For the foregoing reasons, this court should not reach the merits of whether the incident report fits within the confidentiality exception.  Given that the summary judgment evidence does not prove as a matter of law that the incident report is excepted from disclosure, this court should reverse and remand.  Because the court does not do so, I respectfully dissent.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Anderson and Frost, and Senior Justice Hudson.^* (Anderson, J., majority).

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^[1]  See Tex. Gov=t Code Ann. ' 552.101 (Vernon 2004 & Supp. 2008).

^[2]  Abbott v. N. E. Indep. Sch. Dist., 212 S.W.3d 364, 367 (Tex. App.CAustin 2006, no pet.) (noting that burden falls on governmental body seeking to withhold information to prove that the information is not subject to the Texas Public Information Act or is excepted from disclosure).

^[3]  See ante at p. 5.

^[4]  See Tex. Fam. Code Ann. ' 51.02(2) (Vernon Supp. 2008) (defining a Achild@ as Aa person who is (A) ten years of age or older and under 17 years of age; or (B) seventeen years of age or older and under 18 years of age who is alleged to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age@).

^[5]  See A & T Consultants v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995) (concluding that a determination of whether information is subject to the Texas Public Information Act and whether an exception to disclosure applies are questions of law).

^[6]  See Act of June 9, 1993, 73rd Leg., R.S., ch. 461, ' 2, sec. 3, 1993 Tex. Gen. Laws 1850, 1852, repealed by Act of June 1, 1995, 74th Leg., R.S., ch. 262, ' 98, sec. 100(a), 1995 Tex. Gen. Laws 2517, 2590 (codified at Tex. Fam. Code Ann. ' 58.007).

^[7]  See ante at p. 6.

^[8]  See Tex. Gov=t Code Ann. ' 552.101.

^[9]  See id.

^[10]  See Tex. Dep=t of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.CAustin 1992, no pet.) (providing that the trial court shall determine whether the information sought is public information subject to disclosure); see also Tex. Gov=t Code Ann. ' 552.321(a) (Vernon 2004).

^[11]  See Abbott, 212 S.W.3d at 367.

^[12]  See id.

^*  Senior Justice J. Harvey Hudson sitting by assignment.