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September 8, 1999

Ms. Joni M. Vollman
Assistant General Counsel
Office of the District Attorney
201 Fannin, Suite 200
Houston, Texas 77002-1901

OR99-2492

Dear Ms. Vollman:

You ask whether certain information is subject to required public disclosure under the Texas Public Information Act , chapter 552 of the Government Code. Your request was assigned ID# 127134.

The Harris County District Attorney's Office (the "district attorney") received a written request for records pertaining to the death of the requestors' son, who was shot and killed during a traffic altercation. You state that the district attorney will release some responsive records to the requestors. You seek to withhold the remaining records pursuant to sections 552.101 and 552.108 of the Government Code.

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." (Emphasis added.) Exhibit B consists of criminal history record information. We agree that the district attorney must withhold all criminal history information obtained from the TCIC and NCIC in conjunction with state and federal statutes. The dissemination of CHRI obtained from the NCIC network is limited by federal law. See 28 C.F.R. 20.1; Open Records Decision No. 565 at 10-12 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Open Records Decision No. 565 at 10-12 (1990). Sections 411.083(b)(1) and 411.089(a) of the Government Code authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release the CHRI except to another criminal justice agency for a criminal justice purpose. Gov't Code 411.089(b)(1). Thus, any CHRI generated by the federal government or another state may not be made available to the requestor except in accordance with federal regulations. Furthermore, any CHRI obtained

from the Texas Department of Public Safety or any other criminal justice agency must be withheld as provided by Government Code chapter 411, subchapter F. The district attorney therefore must withhold any criminal history information obtained from the TCIC and NCIC pursuant to section 552.101 of the Government Code.

It appears to this office, however, that some of the records contained in Exhibit B were not obtained from TCIC or NCIC, but rather from the Harris County computer system. These records are similar to the other records contained in Exhibit B in that they consist of compilations of the criminal defendants' criminal histories. In United States Department of Justice v. Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989), the U.S. Supreme Court concluded that where an individual's CHRI is compiled or summarized by a governmental entity, the information takes on a character that implicates individual's right of privacy in a manner that the same individual records in an uncompiled state do not. Accordingly, the district attorney must withhold the other compilations of CHRI pursuant to common-law privacy.

You next contend that the contents of Exhibit A are excepted from public disclosure pursuant to, inter alia, section 552.108(a)(2) of the Government Code, which excepts from required public disclosure "information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication." Based on your representation that the "grand jury . . . failed to return a true bill" in connection with the homicide, we conclude that the district attorney may withhold most of the records contained in Exhibit A pursuant to section 552.108(a)(2).(1)

We note, however, that among the documents contained in Exhibit A are police and public court records pertaining to criminal convictions of the deceased for previously committed offenses. The district attorney may not withhold these documents pursuant to section 552.108(a)(2) or any of the other exceptions you have raised. Although these documents constitute a compilation of the deceased's criminal history, these records must be released because, unlike the compilations discussed above, there is no cognizable privacy interest in these records. See Moore v. Charles B. Pierce Film Enterprises Inc., 589 S.W.2d 489 (Tex. Civ. App.--Texarkana 1979, writ ref'd n.r.e.) (right of privacy, being purely personal, lapses upon death); see also Attorney General Opinions JM-229 (1984), H-917 (1976).

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Karen E. Hattaway
Assistant Attorney General
Open Records Division

KEH/RWP/nc

Ref.: ID# 127134

Encl. Submitted documents

cc: Mr. G.W. Anderson
10937 Jack Pearson Road
Conroe, Texas 77304
(w/o enclosures)


 

Footnotes

1. We note that although section 552.108 of the Government Code does not except from required public disclosure "basic information about an arrested person, an arrest, or a crime," Gov't Code 552.108(c), we assume that the district attorney has released to the requestor the categories of information specifically made public in Houston Chronicle Publishing Company v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976).
 

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