Open Records Decision No. 498 June 28, 1988 Re: Whether class-type listings from driver's license record files are protected from required public disclosure under section 21(j)(3) of article 6678b, V.T.C.S., in conjunction with section 3(a)(1) of the Open Records Act, article 6252-17a, V.T.C.S. (RQ-1341) Mr. David M. Douglas General Counsel Texas Department of Public Safety P.O. Box 4087 Austin, Texas 78773-0001 Dear Mr. Douglas: You ask whether the Open Records Act, article 6252-17a, V.T.C.S., requires the Department of Public Safety to make available "lists of persons scheduled for administrative hearings to suspend their drivers license for excessive violations within a specified time frame." Specifically, you ask whether Open Records Decision No. 465 (1987) governs this request. Open Records Decision No. 465 (ORD-465) considered whether the Department of Public Safety was required to provide a list of all persons who received a DIC-26 form letter during a particular period of time. We pointed out that the Open Records Act deals with the availability of existing records; it does not require a governmental body to create records. Because the department informed us that it does not maintain a list of persons who receive DIC-26 form letters, we considered the request at issue in ORD-465 to be one for copies of DIC-26 form letters sent to particular licensees. We concluded that DIC-26 form letters sent to individuals were available under the Open Records Act. A more difficult issue was whether the department had to identify and compile any such documents sent out during a particular period of time. We noted that the department might be able to comply with the request by allowing the requestor to search the department's files for the documents. We pointed out, however, that if the files contained confidential information, the department could not permit the requestor to search the files himself. Also, if the department permitted the requestor to search the files, it would waive any right it might have to withhold information in the files under section 3(a)(8) of the Open Records Act. In those instances, we concluded, the department would be required to identify the files that contained DIC-26 form letters sent during a particular period of time and to make those documents available. Apparently as a response to Open Records Decision No. 465, the 70th Legislature added subsection (j) to section 21 of article 6687b, V.T.C.S. See Bill Analysis, Tex. S.B. No. 161, 70th Leg. (1987) (bill is intended to restrict release of information). Section (21)(j) provides: (1) In addition to the provisions of this section for the release of individual driver's license information, the department may provide a magnetic tape of the names, addresses, and dates of birth of all licensees contained in the department's basic drivers' license record file. In addition, on a periodic basis the department is authorized to provide purchasers of this information any additions of names, addresses, and dates of birth. (2) Before the department may release the information described in Subdivision (1) of this subsection, the purchaser must agree to delete the name, address, and date of birth of any person whose name is also included on the mail or telephone preference list maintained by a recognized trade association which is used to remove the name of any individual who has requested that the individual's name not be made available for solicitation purposes. (3) The department is not authorized to provide class-type listings from the basic drivers' license record file to any person or business; provided, however, such information may be made available to an official of the federal government, the state, a city, town, county, special district, or other political subdivision for official governmental purposes only. (Emphasis added.) Subsection (j)(3) was apparently intended to overrule the holding of ORD-465 that the department is required, in some circumstances, to pinpoint the drivers' license files that contain a certain type of document in order to make those documents available under the Open Records Act. See Open Records Decision No. 65 (1973) (using phrase "class type" information). You now ask whether the department must comply with a request for lists of persons scheduled for administrative hearings to suspend their drivers' licenses. This appears to be a request for the same information that was requested in ORD-465. As indicated, ORD-465 did not state that the department was required to create a list. However, ORD-465 did state that, in some circumstances, the department would be required to identify files that contain a certain type of document and to make those documents available. That requirement is little different in effect from a requirement to create a specific class list, and we think it is that requirement that the legislature intended to overturn when it added subsection (j) to section 21 of article 6687b. Therefore, V.T.C.S. article 6687b, section 21(j)(3) prohibits the department from identifying the driver's license files that contain a particular type of document or information in order to make those documents or information available under the Open Records Act. Consequently, you may not comply with the request you have submitted to us. SUMMARY Article 6687b(21)(j)(3) prohibits the Texas Department of Public Safety from providing "class-type listings from the basic driver's license record file to any person or business." That provision overturns the holding in Open Records Decision No. 465 (1987) that the department is required to identify the driver's license files that contain a certain type of document in order to make the documents available to a person who requests them under the Texas Open Records Act, article 6252-17a, V.T.C.S. Very truly yours, Jim Mattox Attorney General of Texas Mary Keller First Assistant Attorney General Lou McCreary Executive Assistant Attorney General Judge Zollie Steakley Special Assistant Attorney General Rick Gilpin Chairman, Opinion Committee Jennifer S. Riggs Chief, Open Government Section Opinion Committee Prepared by Sarah Woelk Assistant Attorney General The department explained that it used a DIC-26 form letter to notify a person to appear for an administrative hearing to determine whether his or her driver's license would be suspended.