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January 3, 2000

Mr. James T. Russell
Administrative Assistant
District Attorney's Office
27th Judicial District of Texas
P.O. Box 540
Belton, Texas 76513

OR2000-0003

Dear Mr. Russell:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131134.

The District Attorney's Office (the "district attorney") received a request for information regarding various crimes involving a named person. You state that you will release some of the information to the requestor. However, you assert that, pursuant to section 552.028 of the Government Code, you are not required to comply with the request. You further assert that the requested information is excepted from public disclosure by sections 552.101, 552.103, and 552.108 of the Government Code.

Section 552.028 provides:

(a) A governmental body is not required to accept or comply with a request for information from:

(1) an individual who is imprisoned or confined in a correctional facility; or

(2) an agent of that individual, other than that individual's attorney when the attorney is requesting information that is subject to disclosure under this chapter.

(b) This section does not prohibit a governmental body from disclosing to an individual described by Subsection (a)(1), or that individual's agent, information held by the governmental body pertaining to that individual.

Here, the requestor is making the request on behalf of a person confined in a federal correctional facility. You contend that, because the requestor is acting as the inmate's agent, you may decline to comply with the request. We agree that section 552.028 of the Government Code permits you to decline to accept or comply with a request for information that is submitted by an individual who is imprisoned or confined in a correctional facility or that person's agent. However, it is unclear whether the requestor is the confined person's attorney. Section 552.028 is inapplicable if the requestor is acting as the person's attorney, and you must comply with the request for information. We will address your other assertions against public disclosure in the event the requestor is the inmate's attorney.

First, you assert that section 552.108 excepts the information pertaining to the three burglary cases. Initially, we note that Exhibit 5 includes documents that appear to have been filed with a court. Information filed with a court is generally a matter of public record and may not be withheld from disclosure. Star-Telegram, Inc. v. Walker, 834 S.W.2d 54 (Tex. 1992).

Section 552.108 of the Government Code states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code 552.108(a)(1). Generally, a governmental body claiming an exception under section 552.108 must reasonably explain, if the information does not supply the explanation on its face, how and why section 552.108 is applicable. See Gov't Code 552.108, .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You explain that the information pertaining to the three burglary cases relate to pending prosecutions. Because the criminal prosecutions are pending, we believe that the release of the information "would interfere with the detection, investigation, or prosecution of crime." Id. Thus, you may withhold most of the requested information under section 552.108(a)(1).

However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. Gov't Code 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle Publ'g Co. 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). Thus, you must release the basic front page offense and arrest report information, including a detailed description of the offense. We note that you have the discretion to release all or part of the remaining information that is not otherwise confidential by law. Gov't Code 552.007.

Next, we consider your arguments that certain records in your file for Cause No. 47,155 are excepted from public disclosure. The criminal history record information ("CHRI") is confidential pursuant to federal and state statutes and regulations. Title 28, Part 20 of the Code of Federal Regulations governs the release of criminal history information which 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 law with respect to criminal history information it generates. Id. Section 411.083 of the Government Code deems confidential criminal history records that the Department of Public Safety (the "DPS") maintains, except that the DPS may disseminate such records as provided in chapter 411, subchapter F of the Government Code. See also Gov't Code 411.087 (entities authorized to obtain information from DPS are authorized to obtain similar information from any other criminal justice agency; restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies). Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain criminal history record information; however, a criminal justice agency may not release the information 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 are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release the information except as provided by chapter 411. See generally id. 411.090, -127. Thus, any criminal history record information generated in Exhibit Category I by the federal government or another state may not be made available to the requestor except in accordance with federal regulations. See Open Records Decision No. 565 (1990). We note that DPS must grant the person who is the subject of the CHRI access to the CHRI. Gov't Code 411.083(b)(3).

The submitted pre-sentence investigation report is confidential under section 9(j) of article 42.12 of the Code of Criminal Procedure. Article 42.12, section 9(j), reads as follows:

(j) The judge by order may direct that any information and records that are not privileged and that are relevant to a report required by Subsection (a) or Subsection (k) of this section be released to an officer conducting a presentence investigation under Subsection (i) of this section or a postsentence report under Subsection (k) of this section. The judge may also issue a subpoena to obtain that information. A report and all information obtained in connection with a presentence investigation or postsentence report are confidential and may be released only to those persons and under those circumstances authorized under Subsections (d), (e), (f), (h), (k), and (l) of this section and as directed by the judge for the effective supervision of the defendant. Medical and psychiatric records obtained by court order shall be kept separate from the defendant's community supervision file and may be released only by order of the judge.

Pursuant to the statute, we conclude that the presentence investigation report is confidential by statute and excepted from public disclosure based on section 552.101 of the Government Code. However, we note that the defendant or his counsel shall be permitted to read the report before sentencing. Code Crim. Proc. art. 42.12, 9(d), (e).

Finally, you contend that section 552.103 excepts the victim impact statement from public disclosure. Section 552.103(a) excepts from disclosure information relating to litigation to which a governmental body is or may be a party. The governmental body has the burden of providing relevant facts and documents to show that section 552.103(a) is applicable in a particular situation. In order to meet this burden, the governmental body must show that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). You state that you have filed a motion to revoke the deferred adjudication of the named person. You explain that the motion is currently pending before the court. You further explain that the victim impact statement relates to the litigation because the record "may well affect punishment if the motion to revoke is granted; and even if not, [it] could affect the terms and conditions of a continued community supervision." We conclude that you have shown that the victim impact statement relates to the pending litigation. However, it is unclear to this office whether the opposing party was provided with the victim impact statement when the matter was originally adjudicated. If the opposing party has had access to this information, you may not withhold the information under section 552.103. Open Records Decision Nos. 349 (1982), 320 (1982). Therefore, we will address your common-law privacy argument in the event the information is not excepted under section 552.103.

Section 552.101 of the Government Code protects information coming within the common-law right to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Common-law privacy protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and it is of no legitimate concern to the public. Id. at 683-85. We have marked the information in the victim impact statement that you must withhold under common-law privacy.

The victim impact statement also contains information protected from disclosure by sections 552.101 and 552.130 of the Government Code. The social security number in the statement may be confidential if they were obtained or are maintained by the department pursuant to any provision of law, enacted on or after October 1, 1990. 42 U.S.C. 405(c)(2)(C)(vii); see Open Records Decision No. 622 (1994). Section 552.130 excepts information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state. Therefore, you must withhold the driver's license number under section 552.130.

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 appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal 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, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, 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 appeal that decision by suing the governmental body. Id. 552.321(a); Texas Dep't of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

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,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/ljp

Ref.: ID# 131134

Encl.: Marked documents

cc: Ms. Roxanne M. Gonzalez
T.S. Francis & Associates
P.O. Box 443
Wylie, Texas 75098
(w/o enclosures)


 

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