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March 22, 2000

Ms. Kristi LaRoe
Assistant District Attorney
County of Tarrant
401 West Belknap
Fort Worth, Texas 76196-0201

OR2000-1120

Dear Ms. LaRoe:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134742.

The Tarrant County District Attorney received a request for all information it has regarding a named individual. You seek to withhold the information responsive to the request under sections 552.101, 552.103, and 552.111 of the Government Code. You have submitted a representative sample of the information at issue.(1)

We understand you to advise that the individual named in the request was prosecuted by your office and convicted but that there is a pending appeal of the sentence. You contend that the request is, in effect, a request for the prosecutor's entire file In Open Records Decision No. 647 (1996), this office concluded that pursuant to the rationale set forth in National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458, 461 (Tex. 1993), a request for an attorney's entire litigation file may be denied under either section 552.103 or section 552.111 of the Government Code, depending upon whether the litigation is reasonably anticipated, pending, or concluded. Open Records Decision No. 647. Under the circumstances, we conclude that, except as note below, you may withhold the information submitted as responsive to the request pursuant to section 552.103 under the rationale set out in the National Union Fire Insurance case.

Section 552.022(a) requires release to the public of, inter alia, the following kinds of information unless the information is confidential by law:

(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by section 552.108;

(17) information that is also contained in a public court record[.]

The submitted information contains offense reports which, since you have not raised the section 552.108 exception, must be released pursuant to section 552.022(a)(1) except for confidential information contained therein. The offense reports appear to contain confidential criminal history record information (CHRI). 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 of the Government Code 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 id. 411.087 (restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies). Accordingly, you must withhold the CHRI in the offense reports.

The offense reports also appear to contain social security numbers. Social security numbers that were obtained or maintained by a governmental body pursuant to any provision of law, enacted on or after October 1, 1990, are confidential pursuant to section 405(c)(2)(C)(viii) of title 42 of the United States Code and must be withheld. Except for confidential CHRI and social security numbers, you must release the offense reports pursuant to section 552.022(a)(1).

The submitted materials also appear to contain court documents. To the extent that the submitted information contains "information that is also contained in a public court record," it must be released pursuant to section 552.022(a)(17).

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,

William Walker
Assistant Attorney General
Open Records Division

WMW/ljp

Ref: ID# 134742

Encl. Submitted documents

cc: Mr. Gary T. Ericson
Licensed Private Investigator
P.O. Box 148081
Toledo, Ohio 43614
(w/o enclosures)


 

Footnotes

1. In reaching our conclusion, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision No. 499 (1988), 497 (1988) (where requested documents are numerous and repetitive, governmental body should submit representative sample; but if each record contains substantially different information, all must be submitted). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
 

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