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Office of the Attorney General - State of Texas John Cornyn |
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October 22, 2002 Mr. James L. Hall
OR2002-5957 Dear Mr. Hall: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 170311. The Texas Department of Criminal Justice (the "department") received a request for the names and TDCJ numbers of Texas death row inmates who completed IQ tests while serving prior prison sentences and scored 70 or below, the dates the test or tests were administered, and the test scores for each inmate. You state that you will provide the requestor with a list of death row inmates who have prior TDCJ numbers. You explain that the department does not have information regarding the dates on which IQ tests were administered.(1) You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.103, and 552.134 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information.(2) Section 552.134(a) of the Government Code states in pertinent part: (a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department. (b) Subsection (a) does not apply to: . . . (2) information about an inmate sentenced to death. Gov't Code § 552.134(a). The submitted information concerns inmates who are confined in a facility operated by the department. You explain that death row inmates are not administered IQ tests and do not have IQ scores in their records, and that the only information responsive to the present request is maintained in inmate files that were created during previous incarcerations, and not in files created during their current incarceration on death row. Thus, the responsive information is information about a department inmate, but it is not "information about an inmate sentenced to death." Therefore, because the responsive IQ scores were not obtained at a time when the inmates were sentenced to death and are not maintained in their death row files, we find that section 552.029 of the Government Code does not apply to the submitted information.(3) Accordingly, the department must withhold the requested information from disclosure pursuant to section 552.134 of the Government Code. As section 552.134 is dispositive, we do not address your remaining claimed 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). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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, Karen A. Eckerle
c: Mr. Ed Timms
Footnotes 1. We note that the Public Information Act does not require a governmental body to disclose information that did not exist at the time the request was received. Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986). 2. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. 3. This ruling does not reach the issue of whether an inmate's IQ score obtained during his or her incarceration on death row or maintained in files created during his or her incarceration on death row would be excepted from required public disclosure under the Public Information Act. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |