Open Records Decision No. 283
October 26, 1981

Re:  Whether file maintained by Dallas Park Police on trainee is available to that person

Honorable Edward H. Perry
Assistant City Attorney
City of Dallas
Dallas, Texas  75201

Dear Mr. Perry:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether a file maintained by the Dallas Park Police is available to the 
subject of the file.  In 1980, the requestor was accepted as a trainee by the Dallas Park 
Police.  She was paid a salary by the Parks Department while undergoing training, but 
she resigned without completing the course on December 16, 1980.  She now seeks to 
obtain a copy of her personnel file.  You contend that two types of information contained 
therein are excepted from disclosure to the requestor:  criminal history information 
regarding the requestor and members of her family; and the responses of her references 
and former employers to a questionnaire from the Parks Department.

	You suggest that information relating to whether the requestor or any member of 
her family has a criminal record is excepted from disclosure by section 3(a)(1), as:

information deemed confidential by law, either Constitutional, 
statutory, or by judicial decision.

Regulations issued by the Governor's Criminal Justice Division in response to federal 
regulations regarding the dissemination of criminal history record information place 
certain restrictions on the release of such information.  Under these regulations published 
in the Texas Administrative Code, nonconviction data may be released only in certain 
instances.  1 T.A.C. §3.315.  Even the dissemination of conviction data is limited unless 
the information is obtained from court records or the individual is then within the 
criminal justice system.  Id. §3.313(c).  Furthermore, if disclosure of the information is 
itself prohibited by the regulations, an agency is forbidden to confirm the existence or 
non-existence of particular criminal records.  Id. §3.316.  On the basis of these 
regulations and section 3(a)(1) of the Open Records Act, we believe that a law 
enforcement agency may not disclose criminal history record information except in 
compliance therewith.  After inspecting the particular criminal history record information 
at issue here, it is our decision that it should be withheld from disclosure.

	As to the responses of the requestor's references and former employers to a 
questionnaire from the Parks Department, you suggest that the requestor waived any 
right to inspect this material by signing a form entitled “Confidential Information 
Agreement Form.”  Under the terms of the agreement, the requestor acknowledges the 
department's belief that:

such information is confidential, and the department cannot reveal 
the reason of rejection for those applicants who are not accepted.

We need not, however, consider whether this agreement is effective to waive any special 
right of access to this material by the requestor, since it is clear that she could not waive 
the public's right to disclosure.  In addition, we note that this office has long held that 
governmental bodies are prohibited by the Open Records Act from entering into 
agreements to keep information confidential.  Attorney General Opinion H-258 (1974); 
Open Records Decision No. 55A (1975).

	With regard to the public availability of this information from references and 
former employers, you contend that section 3(a)(11) of the act permits the information to 
be withheld.  That section excepts:

inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than one in litigation with 
the agency.

Although section 3(a)(11) has been construed to except only advice, opinions and 
recommendations, most of the responses of the requestor's references and former 
employers are properly so classified.  Such persons are not within the inter-agency 
memorandum exception, however, because they are not authorized to act, and do not in 
fact act, in any official capacity on behalf of the Dallas Police Department.  Open 
Records Decision No. 273 (1981).  See Open Records Decision No. 212 (1978).  We 
have frequently noted that section 3(a)(11) is:

designed to protect from disclosure advice and opinion on policy 
matters and to encourage open and frank discussion between 
subordinate and chief concerning administrative action.

Open Records  Decision No. 273 (1981).  To except from disclosure the response of this 
requestor's references and former employers will not further this purpose.  We conclude 
that such responses are not excepted by section 3(a)(11) and thus, are available to the 
public.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gray III
Executive assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger