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April 5, 2000

Mr. Scott Durfee
General Counsel
Harris County District Attorney's Office
201 Fannin, Suite 200
Houston, Texas 77002-1901

OR2000-1303

Dear Mr. Durfee:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133847.

Harris County (the "county") apparently received a request for the district attorney's file regarding the requestor. You claim that the requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.301 of the Government Code dictates the procedure that a governmental body must follow if it wishes to ask the attorney general for a decision determining whether requested information falls within an exception to disclosure. Among other requirements, the governmental body, "no later than the 15th business day after the date of receiving the written request," must submit to the attorney general "a copy of the written request for information." Gov't Code 552.301(e)(1)(B). If the governmental body fails to do this, the requested information "is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code 552.302.

You state that the county received the request for information on January 18, 2000. Accordingly, the county's deadline for submitting a copy of the written request to this office expired fifteen business days later. See Gov't Code 552.301(e)(1)(D). However, as of the date of this letter, the county has not submitted a copy of the written request. Therefore, the county has missed its fifteen-day deadline as prescribed by section 552.301. Consequently, absent a compelling reason to withhold the requested information, the information must be released.

This office has held that a compelling reason exists to withhold information when the information is confidential by another source of law. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). You argue that Exhibit A is excepted under section 552.108 of the Government Code, and that Exhibits B and C are confidential under state and federal law in conjunction with section 552.101 of the Government Code. While section 552.108 of the Government Code excepts certain law enforcement records from required public disclosure, it is a discretionary exception and not a confidentiality provision. See Open Records Decision No. 473 at 2 (1987) (discretionary exceptions under the Public Information Act can be waived). Therefore, we do not find that you have provided a compelling reason to withhold the records contained in Exhibit A. However, after reviewing Exhibit A, we find that it contains some information that is confidential under other law. Accordingly, a compelling reason exits to withhold this confidential information which is discussed in detail below. See Open Records Decision No. 150 (1977). As for Exhibits B and C, because you argue that they are confidential by other sources of law, we will consider the county's arguments for withholding Exhibits B and C.

We begin our analysis with the social security number that appears in Exhibit A.(1) Section 552.101 excepts from required public disclosure information that is considered confidential by law, either constitutional, statutory, or by judicial decision. Accordingly, section 552.101 encompasses confidentiality provisions such as the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I). This provision makes social security numbers confidential if they are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994). Therefore, if the social security number contained in Exhibit A meets the criteria of section 405(c)(2)(C)(viii)(I), then it is confidential under this provision as encompassed by section 552.101.

Exhibit A also contains a confidential "SID" number. Section 552.130 of the Government Code excepts from required public 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 personal identification document issued by an agency of this state. Therefore, the county must withhold the "SID" number that appears in Exhibit A.(2)

Next, we turn to Exhibit B which you argue is confidential under chapter 411 of the Government Code as encompassed by section 552.101. As explained above, section 552.101 excepts from required public disclosure "information that is confidential by law, either constitutional, statutory, or by judicial decision." Accordingly, section 552.101 encompasses confidentiality provisions regarding criminal history information. Criminal history record information generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC") is confidential by statute. 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 law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that the 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. 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. See Open Records Decision No. 565 (1990). Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. Please note, however, that driving record information is not confidential under chapter 411, see Gov't Code 411.082(2)(B), and must be disclosed. Exhibit B contains confidential CHRI the release of which is governed by chapter 411. Therefore, the county may not release Exhibit B to the requestor.

In regard to Exhibit C, you argue that it is confidential under article 20.02(a) in conjunction with section 552.101. Article 20.02(a) of the Code of Criminal Procedure states that "[t]he proceedings of the grand jury shall be secret." Thus, information that reveals the proceedings of the grand jury is confidential under article 20.02(a) of the Code of Criminal Procedure and excepted from disclosure under section 552.101 of the Government Code. Additionally, in Open Records Decision No. 513 (1988), this office concluded that grand juries are not subject to the Public Information Act, and that records within the constructive possession of grand juries are not public information subject to disclosure under the Public Information Act. See Gov't Code 552.003. Exhibit C consists of a grand jury subpoena and documents obtained with that subpoena. Based upon these considerations, we conclude that the county must withhold Exhibit C from disclosure if the district attorney is holding the documents on behalf of the grand jury.

In conclusion, the county must release most of Exhibit A to the requestor; however, it must withhold the "SID" number and it may need to withhold the social security number if the county obtained and maintains the social security number pursuant to any provision of law enacted on or after October 1, 1990. The county must withhold Exhibit B in its entirety. Finally, the county must withhold Exhibit C in its entirety if the district attorney is holding the documents contained in Exhibit C on behalf of the grand jury.

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,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

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Ref: ID# 133847

Encl: Submitted documents

cc: Ms. Tonya Wooten
c/o Mr. Scott Durfee
General Counsel
Harris County District Attorney's Office
201 Fannin, Suite 200
Houston, Texas 77002-1901
(w/o enclosures)


 

Footnotes

1. Exhibit A contains two worksheets with handwritten notes, and one document with handwritten notes.

2. It is unclear whether the "SID" number is a Texas personal identification number or a Texas driver's license number. Either way, however, it is confidential under section 552.130.
 

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