Open Records Decision No. 457
January 27, 1987

	Re:  Whether the name of the arresting officer on an expunged arrest report is 
excepted from disclosure under the Open Records Act, article 6252-17a, V.T.C.S.

Mr. Gary Keane
Legal Counsel
Dallas/Fort Worth International Airport
P.O. Drawer DFW
DFW Airport, Texas  75261

Dear Mr. Keane:

	You request a decision under the Open Records Act, article 6252-17a, V.T.C.S.  
Your letter provides the following background:

	The DFW Airport Board has received a request for copies of 
the board's Department of Public Safety reports for three individuals 
who were arrested on November 28, 1985, on suspicion of 
burglarizing vehicles.  The three were later released from custody 
and charges were never officially filed.

The three individuals retained an attorney who wrote to the airport board claiming that 
his clients were falsely imprisoned and seeking damages and attorney's fees in settlement 
of the cases.  The attorney rejected the board's settlement offer and now seeks copies of 
the arrest reports containing the arresting officers' names, for the express purpose of 
suing the individual officers as well as the board.

	You inform us that all records concerning the three individuals' arrests were 
expunged by court order dated March 27, 1986.  However, you were able to obtain 
copies of the arrest reports from your insurer, to whom they had previously been 
forwarded.  You believe that the arrest records are exempt from public disclosure 
pursuant to the litigation exception to the Open Records Act.  V.T.C.S. art. 6252-17a, 
§3(a)(3).

	We need not consider whether section 3(a)(3) of the Open Records Act, the 
litigation exception, permits you to withhold these records, because you are forbidden by 
law from disseminating expunged criminal records.  Code Crim. Proc. art. 55.03.  Article 
55.03 of the Code of Criminal Procedure, as incorporated by section 3(a)(1) of the Texas 
Open Records Act, bars you from releasing these arrest records.

	Chapter 55 of the Code of Criminal Procedure provides for the expunction of 
criminal records.  Article 55.02 of the Code of Criminal Procedure sets out the judicial 
procedure for expunction.  When the order of expunction is final, it is sent to the state 
officials, agencies, and political subdivisions which have records or files subject to the 
order.  On receipt of the order, each official or agency is required to

	(1)	return all records and files that are subject to the 
expunction order to the court or, if removal is impracticable, 
obliterate all portions of the record or file that identify the petitioner 
and notify the court of its action; and

	(2)	delete from its public records all index references to the 
records and files that are subject to the expunction order.

Code Crim. Proc. art. 55.02, §5(a).  After entry of an expunction order, "the release, 
dissemination, or use of the expunged records and files for any purpose is 
prohibited. . . ."  Code Crim. Proc. art. 55.03(1).  Article 55.04 of the code sets out the 
penalty for violation of an expunction order:

	Section 1.	A person who acquires knowledge of an arrest 
while an officer or employee of the state or of any agency or other 
entity of the state or any political subdivision of the state and who 
knows of an order expunging the records and files relating to that 
arrest commits an offense if he knowingly releases, disseminates, or 
otherwise uses the records or files.

	Sec. 2.	A person who knowingly fails to return or to obliterate 
identifying portions of a record or file ordered expunged under this 
chapter commits an offense.

	Sec. 3.	An offense under this article is a Class B misdemeanor.

	Article 55.03 prohibits the Dallas/Fort Worth Airport Board from releasing or 
disseminating the arrest records which were expunged by court order.  Accordingly, 
those records are not subject to public disclosure under the Texas Open Records Act.  
The airport board may not provide the requested information in response to a request for 
information under the Open Records Act.

Very truly yours,

Jim Mattox
Attorney General of Texas

Jack Hightower
First Assistant Attorney General

Mary Keller
Executive Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General