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August 22, 2000

Mr. Charles M. Allen, II
Legal Office
Richardson Police Department
P. O. Box 831078
Richardson, Texas 75083-1078

OR2000-3207

Dear Mr. Allen:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 138272.

The Richardson Police Department (the "department") received a request for a copy the offense report and any supplementary documents pertaining to the arrest of a named individual on a specified date. You claim that the information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

The department asserts that the information requested is excepted from required public disclosure under section 552.108(b) of the Government Code. This subsection reads:

An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from [required public disclosure] if:

(1) release of the internal record or notation would interfere with law enforcement or prosecution;

(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication; or

(3) the internal record or notation:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

(B) reflects the mental impressions or legal reasoning of an attorney representing the state.

You do not cite the specific exception in this subsection that you contend applies to the submitted information, but relate that "[a]ll of the records requested contain information dealing with the detection, investigation or prosecution of crime only in relation to an investigation that did not result in a conviction or deferred adjudication[.]" We construe your argument to invoke subsection (b)(2).

This exception applies only to criminal investigations or prosecutions which concluded in a result other than a conviction or deferred adjudication.(1) You do not indicate what, if any, final result was reached in the instant investigation. The submitted information indicates that the case has been referred to the district attorney for prosecution, the suspect has been arrested and charged with a crime, and has subsequently been released on bail pending trial. Thus, there is no indication that this case has reached a final result. As such, we conclude that you have not demonstrated that the submitted information is excepted from disclosure under section 552.108(b)(2) of the Government Code. Therefore, none of the submitted information may be withheld under section 552.108(b).

However, some of the submitted information appears to be criminal history record information ("CHRI"). Section 552.101 excepts from disclosure "information deemed confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Federal regulations prohibit the release of CHRI maintained in state and local CHRI systems to the general public. See 28 C.F.R. 20.21(c)(1) ("Use of criminal history record information disseminated to noncriminal justice agencies shall be limited to the purpose for which it was given."), (2) ("No agency or individual shall confirm the existence or nonexistence of criminal history record information to any person or agency that would not be eligible to receive the information itself."). Section 411.083 provides that any CHRI maintained by the Department of Public Safety ("DPS") is confidential. Gov't Code 411.083(a). Similarly, CHRI obtained from the DPS pursuant to statute is also confidential and may only be disclosed in very limited instances. Id. 411.084; see also 411.087 (restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies). You must withhold, under the above-referenced provisions, the CHRI in the submitted materials.

Additionally, we note that section 552.130 of the Government Code excepts from disclosure information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. Therefore, you must withhold all Texas driver's license numbers, license plate numbers, and VIN numbers. We have marked examples of the types of information that must be withheld under section 552.130.

Finally, the social security numbers contained in your records 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)(viii)(I); see Open Records Decision No. 622 (1994). Section 552.352 of the Government Code provides criminal penalties for the release of information considered confidential under chapter 552. A violation under section 552.352 is a misdemeanor constituting official misconduct. Gov't Code 552.352(b), (c).

In summary, you must withhold all criminal history record information, Texas driver's license, license plate, and vehicle identification numbers, and any social security numbers made confidential pursuant to any provision of law enacted on or after October 1, 1990. The remaining information must be released to the requestor.

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 Department 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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/er

Ref: ID# 138272

Encl. Submitted documents

cc: Ms. Lisa Portnoy
430 Buckingham Road #1610
Richardson, Texas 75081
(w/o enclosures)


 

Footnotes

1. More specifically, this exception applies to internal records. Ongoing cases are excepted from disclosure under 552.108(a)(1). Finalized investigations that did not result in conviction or deferred adjudication and that are not used for internal purposes are excepted from disclosure under section 552.108(a)(2).
 

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