January 18, 2012

Mr. Barry L. Macha

General Counsel

Midwestern State University

3410 Taft Boulevard

Wichita Falls, Texas 76308-2099

OR2012-00869

Dear Mr. Macha:

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# 442640.

Midwestern State University (the "university") received a request for information regarding the requestor's client. You state you have released some of the submitted information. You claim that some of the submitted information is excepted from disclosure pursuant to sections 552.101, 552.108, 552.114, 552.130, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the United States Department of Education Family Policy Compliance Office has informed this office that the Family Educational Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code, does not permit state and local educational authorities to disclose to this office, without parental or an adult student's consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act. ⁽¹⁾ Consequently, state and local educational authorities that receive a request for education records from a member of the public under the Act must not submit education records to this office in unredacted form, that is, in a form in which "personally identifiable information" is disclosed. See 34 C.F.R. § 99.3 (defining "personally identifiable information"). However, FERPA is not applicable to law enforcement records maintained by the university's police department (the "department") that were created by the department for a law enforcement purpose. See 20 U.S.C. § 1232g(a)(4)(B)(ii); 34 C.F.R. §§ 99.3, .8. You assert FERPA applies to portions of the responsive information. We note you have submitted unredacted education records for our review. We also note some of the submitted information in Exhibit C consists of law enforcement records prepared by the department for a law enforcement purpose. Thus, the submitted incident report in Exhibit C is not subject to FERPA, and no portion of it may be withheld on that basis. Further, because our office is prohibited from reviewing education records, we will not address the applicability of FERPA to the remaining records in Exhibit C, other than to note that an adult student has a right of access to his own education records. See 20 U.S.C. § 1232g(a)(1)(A); 34 C.F.R. § 99.3. Such determinations under FERPA must be made by the educational authority in possession of the education records. Likewise, we do not address your arguments under section 552.114 of the Government Code. See Gov't Code §§ 552.026 (incorporating FERPA into the Act), .114 (excepting from disclosure "student records"); Open Records Decision No. 539 (1990) (determining the same analysis applies under section 552.114 of the Government Code and FERPA). However, we will consider your remaining arguments against disclosure of the submitted information.

Next, we note the submitted information in Exhibit B includes a court filed document. Section 552.022(a)(17) of the Government Code provides for required public disclosure of "information that is also contained in a public court record," unless the information is made confidential under the Act or other law. Gov't Code § 552.022(a)(17). Thus, the court filed document we have marked is subject to disclosure under section 552.022(a)(17). Although you seek to withhold this court filed document under section 552.108 of the Government Code, that section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See id. § 552.007; Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 177 at 3 (1977) (statutory predecessor to Gov't Code § 552.108 subject to waiver). As such, section 552.108 does not make information confidential for purposes of section 552.022(a)(17). Therefore, the court filed document we have marked in Exhibit B may not be withheld under section 552.108 of the Government Code and must be released to the requestor pursuant to section 552.022(a)(17) of the Government Code. However, we will address your arguments under section 552.108 for the information not subject to section 552.022 of the Government Code.

Section 552.108(a)(1) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). A governmental body claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. § 552.301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state, and provide affidavits showing, the department and the Wichita County District Attorney's Office seek to withhold the remaining information in Exhibit B because it relates to a pending criminal prosecution and release of the information would interfere with that prosecution. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975) (court delineates law enforcement interests that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Thus, we find section 552.108(a)(1) is applicable to the remaining information in Exhibit B.

You claim some of the submitted information in Exhibit C is excepted from disclosure under section 552.108(a)(2) of the Government Code. Section 552.108(a)(2) excepts from disclosure information concerning an investigation that did not result in conviction or deferred adjudication. See Gov't Code § 552.108(a)(2). You indicate the information you have marked in Exhibit C pertains to closed investigations of the department that did not result in convictions or deferred adjudications. Upon review, we find section 552.108(a)(2) is applicable to the information you have marked in Exhibit C.

However, section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Id. § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 186-88; see also Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). Thus, with the exception of basic information, the university may withhold the remaining information in Exhibit B under section 552.108(a)(1) and the information you have marked in Exhibit C under section 552.108(a)(2) of the Government Code.

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 other statutes make confidential. Criminal history record information ("CHRI") generated by the National Crime Information Center or by the Texas Crime Information Center is confidential under federal and state law. Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual laws with respect to the CHRI it generates. See id. Section 411.083 of the Government Code deems confidential CHRI the Texas Department of Public Safety ("DPS") maintains, except DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090 - .127. Similarly, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 in conjunction with chapter 411, subchapter F of the Government Code. We note, however, CHRI does not include driving record information. See id. § 411.082(2)(B). Upon review, we find the Federal Bureau of Investigation ("FBI") number we have marked in Exhibit C constitutes CHRI. Thus, the university must withhold the marked information under section 552.101 of the Government Code in conjunction with federal law and chapter 411 of the Government Code. ⁽²⁾ However, we find the remainder of the information you have marked in Exhibit C does not constitute CHRI for purposes of chapter 411 of the Government Code and may not be withheld on that basis.

You marked the requestor's client's passport number from the remaining information under section 552.101 of the Government Code. However, you have not directed our attention to any law, nor are we aware of any law, under which this information is considered to be confidential for purposes of section 552.101. See Open Records Decision Nos. 611 at 1 (1992) (common-law privacy), 600 at 4 (1992) (constitutional privacy), 478 at 2 (1987) (statutory confidentiality). Accordingly, the university may not withhold the passport number you have marked under section 552.101 of the Government Code.

You claim a portion of the remaining information in Exhibit C is confidential under section 552.130(a) of the Government Code, which provides:

Information is excepted from the requirements of Section 552.021 if the information relates to:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state or another state or country;

(2) a motor vehicle title or registration issued by an agency of this state or another state or country; or

(3) a personal identification document issued by an agency of this state or another state or country or a local agency authorized to issue an identification document.

Gov't Code § 552.130. We note, however, section 552.130 protects personal privacy. Thus, the requestor has a right of access to her client's own motor vehicle record information pursuant to section 552.023 of the Government Code. See id. § 552.023(b) (governmental body may not deny access to person to whom information relates or person's agent on grounds that information is considered confidential by privacy principles); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individuals request information concerning themselves). Therefore, the remaining information you have marked in Exhibit C may not be withheld from this requestor under section 552.130.

You also assert that some of the remaining information is excepted under section 552.147 of the Government Code. Section 552.147 states "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Gov't Code § 552.147. However, section 552.147 also protects personal privacy. Therefore, the requestor also has a right of access to her client's social security number and it may not be withheld from this requestor under section 552.147. See id. § 552.023(a).

In summary, the university must release the court filed document we have marked in Exhibit B under section 552.022(a)(17) of the Government Code. With the exception of basic information, the remaining information in Exhibit B may be withheld under section 552.108(a)(1) and the information you have marked in Exhibit C may be withheld under section 552.108(a)(2) of the Government Code. The university must withhold the information we have marked under section 552.101 in conjunction with federal law and chapter 411 of the Government Code. The remaining information in Exhibit C must be released to this requestor. ⁽³⁾

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,

Debbie K. Lee

Assistant Attorney General

Open Records Division

DKL/agn

Ref: ID# 442640

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. A copy of this letter may be found on the Office of the Attorney General's website at http://www.oag.state.tx.us/open/20060725usdoe.pdf.

2. We note that the requestor can obtain her client's CHRI from DPS. See Gov't Code § 411.083(b)(3).

3. We note that this requestor has a special right of access under section 552.023 of the Government Code to some of the information being released. See Gov't Code § 552.023(a). Therefore, if the university receives another request for this information from a person who does not have a special right of access to this information, the university should resubmit this same information and request another decision from this office. See id. §§ 552.301(a), .302; Open Records Decision No. 673 (2001).

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