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August 11, 2000

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

OR2000-3057

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# 137924.

The Richardson Police Department (the "department") received a request for information relating to an arrest of a particular individual. You inform us that with the exception of certain records that you claim may not be released, all responsive documents held by the department were provided to the requestor. You do not raise any specific exception to the disclosure of the records that you claim must be withheld. We have considered your arguments and have reviewed the submitted records that the department seeks to withhold. We also received and have reviewed the comments, dated June 21 and July 14, 2000, that the requestor submitted to this office.

Initially we must consider the requestor's contentions that the department failed to comply with certain provisions of the Public Information Act in requesting this ruling. You have treated an e-mail message from the requestor to you personally, dated May 30, 2000, as the request for the information that the department seeks to withhold. In that e-mail, the requestor states that he initially requested the information that is at issue here by submitting his request via e-mail to Captain Ted Meyer of the department on May 20, 2000. According to the requestor, Captain Meyer responded by e-mail on May 22, stating: "Please send your request via fax to 972-238-3896 to attn of Charles Allen, Esq. We do not accept email requests." Apparently Captain Meyer also forwarded the requestor's e-mail request to you personally. The requestor further informs us that, in response to his subsequent e-mail inquiry on May 24, Captain Meyer provided him with your mailing address that same day. The requestor also advises us that he forwarded his original request to you personally via e-mail on May 30. Your own correspondence with this office reflects that on June 5, you submitted your written request for this ruling, informing us of the information that you seek to withhold and advising us of the release of the other requested information to the requestor. Your correspondence with us further reflects that you sent a copy of your request for this ruling to the requestor on June 5 and informed him by separate letter, also dated June 5, that the department would provide the requested information, with the exception of the records that you claim may not be released.

The requestor contends that in responding to his request for information and seeking this ruling, the department failed to comply with sections 552.221 and 552.301 of the Government Code. With regard to the requestor's initial e-mail to Captain Meyer, we agree that the Public Information Act permits a request for information to be submitted to a governmental body via electronic mail. Section 552.301(c) of the Government Code provides that "a written request includes a request made in writing that is sent to the officer for public information, or the person designated by that officer, by electronic mail or facsimile transmission." Gov't Code 552.301(c). In permitting the submission of a request for information by electronic mail or facsimile transmission, section 552.301(c) specifically requires that the request be submitted directly to the officer for public information or that officer's designee. Thus, based on our understanding that Captain Meyer is not the department's officer for public information or that person's designee, his receipt of the requestor's e-mail did not trigger the department's deadlines to respond to a request for information under the Public Information Act.

The requestor also complains that the department failed to comply with section 552.221 and other provisions of section 552.301 in responding to his request for information and in requesting this ruling. Section 552.221 governs a governmental body's obligation to make responsive information available to a person who requests access to it. Section 552.301 prescribes the procedures that a governmental body must follow in seeking a ruling by this office as to whether requested information may be withheld from the public. Section 552.221 requires a governmental body either to produce requested information "promptly" or, if for certain permissible reasons the governmental body is unable to produce the information within ten business days of the date of the request, to certify that fact to the requestor in writing and set a date and hour, within a reasonable time, for inspection or duplication of the requested information. See Gov't Code 552.221(a), (c), (d); see also Open Records Decision No. 664 (2000). Section 552.301 provides in relevant part:

(a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the exceptions [to required public disclosure] under Subchapter C [of chapter 552 of the Government Code] must ask for a decision from the attorney general about whether the information is within that exception[.]

(b) The governmental body must ask for the attorney general's decision and state the exceptions that apply . . . not later than the 10th business day after the date of receiving the written request.

. . .

(d) A governmental body that requests an attorney general decision under Subsection (a) must provide to the requestor within a reasonable time but not later than the 10th business day after the date of receiving the requestor's written request:

(1) a written statement that the governmental body wishes to withhold the requested information and has asked for a decision from the attorney general about whether the information is within an exception to disclosure; and

(2) a copy of the governmental body's written communication to the attorney general asking for the decision or, if the governmental body's written communication to the attorney general discloses the requested information, a redacted copy of that written communication.

(e) A governmental body that requests an attorney general decision under Subsection (a) must . . . not later than the 15th business day after the date of receiving the written request:

(1) submit to the attorney general:

(A) written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld;

(B) a copy of the written request for information;

(C) a signed statement as to the date on which the written request for information was received by the governmental body or evidence sufficient to establish that date; and

(D) a copy of the specific information requested, or submit representative samples of the information if a voluminous amount of information was requested; and

(2) label that copy of the specific information, or of the representative samples, to indicate which exceptions apply to which parts of the copy.

Gov't Code 552.301(a), (b), (d), (e). The requestor contends that the department failed to comply with section 552.221 and with subsections (b) and (d) of section 552.301.

Based on the department's and the requestor's respective correspondence with this office, we conclude that the department complied with sections 552.221 and 552.301(d). Both the requestor's e-mail to you personally dated May 30 and his correspondence with this office reflect that he e-mailed a copy of his original request for information to you personally on May 30. Your correspondence with this office reflects that on June 5 (i.e., within ten business days of your personal receipt of the e-mail request), you submitted your request for this ruling to this office and sent a copy to the requestor. Your letter of June 5 states that, with the exception of the records that you seek to withhold, you provided the responsive information to the requestor. Exhibit "B" to your letter, also dated June 5, reflects that you notified the requestor of the address at which he could claim the information and of the cost of duplication. Accordingly, we conclude that the department responded to the request for information "promptly," as required by section 552.221(a), and that the department requested this ruling and complied with the notice requirements of section 552.301(d) in a timely manner.(1)

We further conclude, however, that the department failed timely to raise any exception to the disclosure of the information that it seeks to withhold, as required by section 552.301(b), and that it also failed timely to provide this office with either a copy of the request for information or a signed statement as to the date on which the department received the request, or evidence sufficient to establish that date, as required by subdivisions (1)(B) and (1)(C) of section 552.301(e).(2) Section 552.302 prescribes the consequences of failure to comply with section 552.301 in requesting an attorney general decision under the Public Information Act. Section 552.302 provides as follows:

If a governmental body does not request an attorney general decision as provided by Section 552.301 and provide the requestor with the information required by Section 552.301(d), the information requested in writing 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. As the department's deadlines for compliance with subsections (b) and (e) of section 552.301 have expired, the requested information that the department seeks to withhold is presumed to be subject to required public disclosure and must be released, unless there is a compelling reason to withhold any of that information from the public. See Gov't Code 552.302; see also Hancock v. State Bd. of Ins., 797 S.W.2d 379, 380-81 (Tex. App.--Austin 1990, no writ); Open Records Decision No. 630 at 3 (1994). The presence of requested information that is deemed confidential under section 552.101 of the Government Code in conjunction with some other source of law can furnish a compelling reason sufficient to overcome the operation of section 552.302. See Gov't Code 552.101; Open Records Decision Nos. 630 at 3 (1994) (addressing compelling reasons sufficient to overcome non-compliance with section 552.301), 325 (1982) (citing statutory predecessor to section 552.101).

You state that the documents that the department seeks to withhold contain criminal history record information ("CHRI"). Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code 552.101. We agree that the department must withhold all CHRI that was obtained from the National Crime Information Center ("NCIC") or the Texas Crime Information Center ("TCIC"). The dissemination of CHRI obtained from the NCIC network is governed by federal law. Federal regulations prohibit the release to the general public of CHRI that is maintained in state and local CHRI systems. 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.") and (c)(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"); see also Open Records Decision No. 565 at 10-12 (1990). The federal regulations allow each state to follow its own individual law with respect to CHRI that it generates. See ORD 565 at 10-12. Sections 411.083(b)(1) and 411.089(a) of the Government Code 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. See Gov't Code 411.089(b). Thus, any CHRI generated by the federal government or another state may be disclosed only in accordance with the federal regulations. Furthermore, any CHRI obtained from the Texas Department of Public Safety (the "DPS") or any other criminal justice agency must be withheld as provided by subchapter F of chapter 411 of the Government Code. Accordingly, any criminal history record information that was obtained from the NCIC or the TCIC is confidential and must be withheld from disclosure pursuant to section 552.101 of the Government Code in conjunction with federal law and subchapter F of chapter 411 of the Government Code.

The submitted records also contain social security number information that may be confidential under section 552.101 in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if that information was obtained or is maintained by a governmental body pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 at 2-4 (1994). It is not apparent to this office that the social security number information contained in the submitted police report was obtained or is maintained by the department pursuant to any provision of law enacted on or after October 1, 1990. You have cited no law, nor are we are aware of any law, enacted on or after October 1, 1990, that authorizes the department to obtain or maintain a social security number. Therefore, we have no basis for concluding that the information in question was obtained or is maintained pursuant to such a law and is therefore confidential under section 405(c)(2)(C)(viii)(I) of the federal law. We caution you, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Therefore, prior to releasing the social security number information that we have marked, the department should ensure that the information was not obtained and is not maintained pursuant to any provision of law enacted on or after October 1, 1990.

The records also contain motor vehicle record information whose disclosure is governed by section 552.130 of the Government Code. Section 552.130 provides in relevant part:

(a) Information is excepted from [required public disclosure] if the information relates to:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state;

(2) a motor vehicle title or registration issued by an agency of this state; or

(3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document.

Gov't Code 552.130(a). We have marked the motor vehicle record information that the department must withhold in accordance with section 552.130.

In summary, the department complied with sections 552.221 and 552.301(d) of the Government Code in requesting this ruling. However, because the department failed to comply with other provisions of section 552.301, the information that the department seeks to withhold is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold any of that information from the public. Criminal history record information obtained from the NCIC or the TCIC is confidential under section 552.101 in conjunction with federal law and subchapter F of chapter 411 of the Government Code and must be withheld from the requestor. Social security number information may be confidential under section 552.101 in conjunction with federal law. Motor vehicle record information must be withheld in accordance with section 552.130. The department must release to the requestor information that is not protected by section 552.101 or 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 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/ljp

Ref: ID# 137924

Encl. Submitted documents

cc: Mr. Paul Jordan
P.O. Box 154248
Irving, Texas 75015-4248
(w/o enclosures)


 

Footnotes

1. We note that the post office box number to which the department addressed its June 5 correspondence with the requestor (P.O. Box 154348) does not coincide with the box number (P.O. Box 154248) that the requestor provided to this office. We presume that the department has learned of this discrepancy and has directed its correspondence with the requestor to his correct address. If not, you should do so immediately.

2. Although you did provide a copy of the e-mail that the requestor submitted to you personally on May 30, you did not provide a copy of the original e-mail request to Captain Meyer on May 20.
 

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