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April 14, 2000

Ms. Nydia D. Thomas
Staff Attorney and Public Information Officer
Texas Juvenile Probation Commission
P.O. Box 13547
Austin, Texas 78711

OR2000-1495

Dear Ms. Thomas:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code (the "Act"). Your request was assigned ID# 134329.

The Texas Juvenile Probation Commission (the "commission") received a request for information relating to a particular juvenile offender. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. You also assert that the commission does not maintain juvenile records and files and therefore cannot submit the requested information for our review. We have considered the exception you claim and your explanation of the commission's inability to comply with the Act in responding to the instant request.

Section 552.301 of the Government Code requires a governmental body that seeks to withhold requested information from public disclosure to submit to the Attorney General either the responsive information or representative samples if the requested information is voluminous. See Gov't Code 552.301(e)(1)(D). You inform us that you are unable to submit the requested information to this office because the commission does not maintain physical juvenile records and files. You explain that such records and files are maintained locally.

Ordinarily, the Act requires a governmental body to make a good faith effort to relate a request for information to information that the governmental body holds. See Open Records Decision No. 561 at 8 (1990). However, the Act does not require a governmental body to take affirmative steps to create or obtain information that is not in its possession, as long as no other entity holds that information on behalf of the governmental body that receives the request for it. See Gov't Code 552.002(a) (defining "public information" as information collected, assembled, or maintained "by . . . or . . . for a governmental body") (emphasis added); see also Open Records Decision Nos. 534 at 2-3 (1989) (holding that so long as no entity held requested information on behalf of Texas Human Rights Commission, commission had no duty to obtain it); 518 at 3 (1989) (determining that criminal district attorney was not required to respond to request for information held by county auditor). Our review of the relevant statutes tends to confirm your assertion that the commission does not maintain the kind of information that would be responsive to the instant request. See, e.g., Hum. Res. Code 141.0405 et seq. (providing for powers and duties of Juvenile Probation Commission); Fam. Code 58.007 (governing maintenance of physical records or files relating to juvenile offenders); Fam. Code 58.106 (governing access to information contained in juvenile justice information system). We therefore conclude that the Public Information Act does not require the commission to comply with the instant request for information if the commission does not maintain or have access to any information that is responsive to the request.

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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ch

Ref: ID# 134329

cc: Ms. Deborah Lockridge
618 Ritchy Street
Gainesville, Texas 76240  

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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