 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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September 30, 2008 Ms. Sharon Alexander Associate General Counsel Texas Department of Transportation 125 East 11th Street Austin, Texas 78701-2483 OR2008-13382 Dear Ms. Alexander: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 323744. The Texas Department of Transportation (the "department") received a request for information relating to a named individual. (1) You have submitted information that the department seeks to withhold under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. We assume that the department has released any other information that is responsive to this request, to the extent that such information existed when the department received the request. If not, then any such information must be released immediately. (2) See Gov't Code §§ 552.221, .301, .302; Open Records Decision No. 664 (2000). Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information that other statutes make confidential. Criminal history record information ("CHRI") obtained from the National Crime Information Center or the Texas Crime Information Center is confidential under federal and state law. CHRI means "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." (3) Id. § 411.082(2). Federal law governs the dissemination of CHRI obtained from the National Crime Information Center network. Federal regulations prohibit the release to the general public of CHRI maintained in state and local CHRI systems. See 28 C.F.R. § 20.21(c)(1) ("Use of criminal history record information disseminated to noncriminal justice agencies shall be limited to the purpose for which it was given.") and (c)(2) ("No agency or individual shall confirm the existence or nonexistence of criminal history record information to any person or agency that would not be eligible to receive the information itself."). The federal regulations allow each state to follow its own individual law with respect to CHRI that it generates. See Open Records Decision No. 565 at 10-12 (1990); see generally Gov't Code ch. 411 subch. F. Section 411.083 of the Government Code deems confidential CHRI that the Texas Department of Public Safety (the "DPS") maintains, except that the DPS may disseminate CHRI information as provided by subchapter F of chapter 411 of the Government Code. See id. § 411.083. Subchapter F includes section 411.122 of the Government Code, which provides in part: (a) Except as provided by Subsection (c)(2), an agency of this state listed in Subsection (d) . . . that licenses or regulates members of a particular trade, occupation, business, vocation, or profession is entitled to obtain from the [DPS CHRI] maintained by the [DPS] that relates to a person who
(1) is an applicant for a license from the agency;
(2) is the holder of a license from the agency; or
(3) requests a determination of eligibility for a license from the agency. Id. § 411.122(a). Subsection 411.122(d) lists the department as one of the agencies that are authorized to obtain CHRI from the DPS under section 411.122. See id. § 411.122(d)(22). You state that the submitted information is maintained in the licensure files of the department's Motor Vehicle Division (the "division"). Based on your representations and our review of the information at issue, we understand that the division obtained the information from the DPS in connection with a licensing matter. We therefore conclude that the submitted information constitutes CHRI that the department must withhold under section 552.101 of the Government Code in conjunction with section 411.083 of the Government Code. (4) 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3). If the governmental body does not file suit over 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 challenge that decision by suing the governmental body. Id. § 552.321(a); Texas Dep't of Pub. 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 Office of the Attorney General 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. 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, James W. Morris, III Assistant Attorney General Open Records Division JWM/jh Ref: ID# 323744 Enc: Submitted documents c: Ms. Janet Freeman Sapp & White, P.C. 809 West Avenue Austin, Texas 78701 (w/o enclosures)
1. You inform us that the requestor subsequently clarified her request. See Gov't Code § 552.222(b)
(governmental body may communicate with requestor for purpose of clarifying or narrowing request for
information);
2. We note that the Act does not require a governmental body to release information that did not exist
when it received a request or create responsive information. See Econ. Opportunities Dev. Corp. v.
Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision
Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).
3. We note that the statutory definition of CHRI does not encompass driving record information
maintained by the Texas Department of Public Safety (the "DPS") under subchapter C of chapter 521 of the
Transportation Code. See Gov't Code § 411.082(2).
4. We note that an individual may obtain his own CHRI from the DPS. See Gov't Code § 411.083(b)(3).
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |