April 18, 2011

Ms. Tiffany Bull

Assitant City Attorney

Arlington Police Department

P.O. Box 1065

Arlington, Texas 76004

OR2011-05325

Dear Ms. Bull:

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# 414816 (APD Reference Nos. 3040 & 3162).

The Arlington Police Department (the "department") received two requests for a specified report. You claim 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.

Initially, we must address the department's obligations under the Act. Section 552.301 describes the procedural obligations placed on a governmental body that receives a written request for information it wishes to withhold. Pursuant to section 552.301(b) of the Government Code, the governmental body must request a ruling from this office and state the exceptions to disclosure that apply within ten business days after receiving the request. See Gov't Code § 552.301(b). Pursuant to section 552.301(e) of the Government Code, the governmental body is required to submit to this office within fifteen business days of receiving the request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. See id. § 552.301(e). In this instance, you state the department received the first request for information on January 25, 2011. You did not, however, request a ruling from this office, submit comments explaining why your stated exceptions apply, or submit a copy of the information requested until February 10, 2011. Thus, we find the department failed to comply with the requirements of section 552.301 with respect to the first request for information.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the requirements of section 552.301 results in the legal presumption the requested information is public and must be released unless a compelling reason exists to withhold the information from disclosure. See id. § 552.302; Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); see also Open Records Decision No. 630 (1994). Generally, a compelling reason to withhold information exists where some other source of law makes the information confidential or where third party interests are at stake. Open Records Decision No. 150 at 2 (1977). Because section 552.101 of the Government Code can provide a compelling reason to withhold information, we will consider your submitted argument against disclosure of 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. This section encompasses information made confidential by other statutes, such as section 58.007 of the Family Code, which makes confidential juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997. The relevant language of section 58.007 reads:

(c) 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.

Fam. Code § 58.007(c). For purposes of section 58.007(c), "child" means a person who is ten years of age or older and under seventeen years of age at the time of the reported conduct. See id. § 51.02(2). The submitted report is a law enforcement record that involves juveniles suspected of delinquent conduct. See id. § 51.03(a) (defining juvenile "delinquent conduct" for the purposes of section 58.007). It does not appear any of the exceptions in section 58.007 of the Family Code apply to either requestor. Therefore, the submitted report is confidential under section 58.007(c) of the Family Code.

We note, however, that the first requestor is a representative of the Housing Authority of the City of Arlington (the "housing authority"). Section 1437d(q)(1)(A) of title 42 of the United States Code, the federal Housing Opportunity Program Extension Act of 1996, provides, "[n]otwithstanding any other provision of law, . . . the National Crime Information Center, police departments, and other law enforcement agencies shall, upon request, provide information to public housing agencies regarding the criminal conviction records of adult applicants for, or tenants of, covered housing assistance for purposes of applicant screening, lease enforcement, and eviction." 42 U.S.C. § 1437d(q)(1)(A). Section 1437d(q)(1)(C) provides, "[a] law enforcement agency described in subparagraph (A) shall provide information under this paragraph relating to any criminal conviction of a juvenile only to the extent that the release of such information is authorized under the law of the applicable State, tribe, or locality." Id. § 1437d(q)(1)(C). In Open Records Decision No. 655 (1997), this office concluded these federal statutes authorize local housing authorities to obtain the criminal history record information ("CHRI") of adult and juvenile tenants. CHRI consists of "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." Gov't Code § 411.082(2). However, the federal law limits the purposes for which a public housing authority may request CHRI. It provides, among other things, (1) public housing agencies may receive CHRI of adult and juvenile applicants or tenants of public housing, and (2) CHRI may only be used for purposes of applicant screening, lease enforcement, and eviction. See 42 U.S.C. § 1437d(q)(1)(A), (C); ORD 655 at 3-5. Section 1437d(q)(1)(A) states a housing authority shall be provided access to the CHRI "[n]otwithstanding any other provision of law." 42 U.S.C. § 1437d(q)(1)(A). Based on this language, we find section 1437d(q)(1)(A) prevails over section 58.007 of the Family Code, and, to the extent applicable, the other claimed exceptions. Cf. Equal Employment Opportunity Comm'n v. City of Orange, Texas, 905 F. Supp 381, 382 (E.D. Tex. 1995) (federal law prevails over inconsistent provision of state law). However, as previously discussed, section 1437d(q)(1)(C) allows a housing authority to obtain access to juvenile CHRI "only to the extent that the release of such information is authorized under the law of the applicable State, tribe, or locality." 42 U.S.C. § 1437d(q)(1)(C). Juvenile justice information is confidential but may be released to any "entity to which [the Texas Department of Public Safety ("DPS")] may grant access to adult criminal history records as provided by Section 411.083, Government Code[.]" Fam. Code § 58.106(a)(2). Section 411.083(b)(2) of the Government Code states DPS is required to provide CHRI to a non-criminal justice agency authorized to receive CHRI pursuant to federal statute, executive order, or state statute. Gov't Code § 411.083(b)(2). Because housing authorities are authorized to obtain adult CHRI under sections 1437d(q)(1)(A) and 411.083(b)(2), they are also authorized to obtain similar information regarding juveniles. The housing authority, however, may only obtain and use juvenile information in accordance with section 1437d(q)(1)(A). See also id. § 411.084(2)(B) (stating CHRI may only be disclosed or used as authorized or directed by another statute).

Although the first requestor is with the housing authority, we are unable to determine whether this requestor is seeking the release of CHRI of applicants or tenants for purposes of applicant screening, lease enforcement, or eviction. Thus, if the submitted information relates to applicants or tenants of the housing authority and the department determines the first requestor intends to use the CHRI for purposes of applicant screening, lease enforcement, or eviction, then we conclude any CHRI of a juvenile tenant of public housing contained in the submitted report must be released to the first requestor in accordance with section 1437d(q)(1) of title 42 of the United States Code and Open Records Decision No. 655. See also 24 C.F.R. § 5.903 (describing public housing authorities' access to criminal records). In that instance, the remainder of the submitted report must be withheld from the first requestor under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. However, if the department determines the submitted information does not relate to housing authority applicants or tenants or the housing authority does not intend to use the CHRI for purposes of applicant screening, lease enforcement, or eviction, then the department must withhold the submitted report in its entirety from the first requestor under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. Regardless, the department must withhold the submitted report from the second requestor under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code.

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,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/tf

Ref: ID# 414816

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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