November 8, 2010

Mr. Adam C. Falco

Senior Assistant City Attorney

City of College Station

P.O. Box 9960

College Station, Texas 77842

OR2010-16862

Dear Mr. Falco:

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# 400737.

The City of College Station (the "city") received a request for information pertaining to a specified incident. You claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

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. Section 552.101 encompasses information protected by other statutes, such as section 58.007 of the Family Code. Juvenile law enforcement records relating to delinquent conduct or conduct in need of supervision that occurred on or after September 1, 1997 are confidential under section 58.007. See Fam. Code § 51.03(a) (defining "delinquent conduct"). For purposes of 58.007(c), a "child" is a person who is ten years of age or older and under seventeen years of age at the time of the conduct. Id. § 51.02(2). The relevant language of section 58.007 reads as follows:

Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapters B, D, and E.

Id. § 58.007(c). Upon review, we agree the submitted information constitutes a law enforcement record involving juvenile delinquent conduct that occurred after September 1, 1997. We therefore conclude the information at issue falls within the scope of section 58.007(c).

We note, however, the requestor is a recruiter for the United States Marine Corps (the "Marines") and we understand the named individual is a potential enlistee in the Marines. The United States Department of Defense (the "DoD") is authorized to perform background investigations of persons seeking to enlist into the armed services. See 5 U.S.C. § 9101(b)(1)(C); see also id. § 9101(a)(6)(A) (DoD is a covered agency for purposes of section 9101). The Marines have a right to the criminal history record information ("CHRI") of state and local criminal justice agencies when their investigation is conducted with the consent of the individual being investigated. See id. § 9101(b)(1), (c); see also 10 U.S.C. §§ 111(b)(7) (DoD includes the Department of the Navy), 5041(a) (Marines are part of Navy Department). CHRI is defined as "information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correction supervision, and release," but does not include "identification information such as fingerprint records to the extent that such information does not indicate involvement of the individual in the criminal justice system" or "records of a State or locality sealed pursuant to law from access by State and local criminal justice agencies of that State or locality." 5 U.S.C. § 9101(a)(2).

Federal law provides that the Marines' right of access to CHRI preempts state confidentiality provisions. Id. § 9101(b)(4) (section 9101 "shall apply notwithstanding any other provision of law . . . of any State"). We thus conclude that the Marines' right of access under federal law preempts the state confidentiality provision you claim. See English v. General Elec. Co., 496 U.S. 72, 79 (1990) (state law is preempted to extent it actually conflicts with federal law); see also La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986) (federal agency acting within scope of its congressionally delegated authority may preempt state regulation). Federal law also provides, however, that the Marines' right of access to CHRI is contingent on receiving written consent from the individual under investigation for the release of such CHRI. See 5 U.S.C. § 9101(c).

Although the Marines appear to have made the instant request for information for recruiting purposes, we have no indication that the requestor has provided a signed authorization for release from the individual under investigation for the release of the information at issue. Nevertheless, if the instant request was made for recruiting purposes, and if the Marines provide a signed written consent for release from the individual being investigated, then the city must release CHRI from the submitted information to the Marines. In that event, the city must withhold the rest of the responsive submitted information under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. If the instant request was not made for recruiting purposes, or if the Marines do not provide a written consent for release, then the city must withhold the responsive submitted information in its entirety under section 552.101 in conjunction with section 58.007.

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free, at (888) 672-6787.

Sincerely,

Laura Ream Lemus

Assistant Attorney General

Open Records Division

LRL/eb

Ref: ID# 400737

Enc. Submitted documents

c: Requestor

(w/o enclosures)

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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