Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
December 6, 197b
MARK WHITE
Anornsy General
Honorable Joe Resweber Opinion No. MW-95
liarrb County Attorney
1001 Preston, Suite 634 Re: Access by an individual to his
Houston, Texas 77002 own criminal history record.
Dear Mr. Resweber:
You request our opinion on whether the Harris County Sheriff is
required to furnish an individual with a copy of hi own criminal history
F&Xd.
No Texas statute speaks directly to this question. Criminal history
record information is excepted from required public dIscsclosure under an
exception to the Texas Cpen Records Act. V.T.C.S. art. 6252-17a, S 3taX6).
This was established in Houston Chronicle Publishing Co. v. City of Houston,
531 S.W.?d 177, 187-186 (Tex. Civ. App. - Houston U4th Dist.] 19751, writ
reM n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). This office has followed
and applied this holding in a number of open records decisions. Open
Records Decision Nos. 216, p. 5 0978); 183, p 5 0976); 144 0976); and 127, p. 6
0976).
The Texas Open Records Act deals primarily with the general public’s
right to information, and does not provide fcr a special right of access to the
subject of records except in two situations. Spe-cial access is given to a
governmental employee to his own records in a proviso of section S(aXZ), and
a student is give&a r@ht of a&es to his own records under section 3ftil4).
However, the Texas Cpen Records Act is not the only means by which
information may be obtained, and this office has said that the Act does not
restrict a right of access based on an individual’s special interest in the
information. Open Records Decision No. 127, p 6 0976).
The basis cn which the court in the Houston Chronicle case, m. held
that criminal history records should not be publicly &cloerd was the
“potential for massive and unjustified damage to the individual” which could
result from indiscriminate release of such records. The court also noted
that unauthorized disclosure could jeopardize the availability of federal
technical and financial aid and assistance provided under the Omnibus Crime
Control and Safe Streets Act of 1968, as amended. 42 U.S.C. SS 3701,
3731(a), and 3771(b).
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Honorable Joe Resweber - Page TWO (m-95)
A common-law right of acea which entitles an individual to inspect records held by
the government concerning that individual has been recagnized In Hutchins v. Texas
Rehabilitation Commission, 544 S.W.td 802 (Tex. Civ. App - Austin 1976, no writ), the
court held that a former patient of the Texas Rehabilitation Commission had a common-
law right of access to her own records even though a specific statute made those records
confidential as to the general public. We have found no case which has held that this
common-law right applies to criminal history information about oneself, but we believe
that the principle recognized in the Hutchins cese, su r at least provides a sufficient
legal basis for an agency to disclose swmation to
-9i e individual whom it concerns.
The Texas Department of Public Safety has adopted a policy that an individual has a right
of access and review of his own criminal history record on file with the Department, and
has adopted regulations providing a procedure for exercise of this right. Texas
Department of Public Safety Rule No. 2OL14.OLOOl,issued December 15, 1975. This policy
is clearly consistent with the right of individual access recognized in the Hutchins case,
supra.
Your brief discusses the provisions of the Federal Freedom of Information Act, 5
U.S.C. S 552, end the Federal Privacy Act of 1974, 5 U.S.C. S 552a, in relation to these
records. However, neither of these federal Acts applies to a Texas law enforcement
agency such as a county sheriff% office. These Acts apply only to an “agency” which is
defined as an authority of the Government of the United States. 9ee 5 USC. SS 551@,
552(e), and 552a(a)(lX It has been held that the Texas Board of Pardons and Paroles is not
an “agency” within the definition in 5 U&C. S 551(l) became it is not a federal agency.
Johnson v. Wells, 566 F.2d 1016 (5th Cir. 1978). Thus neither the Federal Freedom of
Information Act nor the Federal Privacy Act of 1974 applies to records held by an agency
of this state or its political subdivisions.
Another federal statute and the regulations issued thereunder may affect the
disclosure of criminal history record information held by a state or local agency in Texas.
The Omnibus Crime Control and Safe Streets Act of 1968, and amendments thereto,
established the Law Enforcement Assistance Administration (LEAA) which provides
federal technical and financial aid and assistance to state and local agencies. See 42
U.S.C. SS 3701, 3731(a) and 3771(bL Under the last cited provision, the Law RnfoK?eii;ent
Assistance Administration is required to assure that the security and privacy of criminal
history record information is adequately provided for. The LEAA has issued regulations
pursuant to this authority. See 28 C.F.R. part 20. The regulations are applicable to any
state or local agency which hasreceived LEAA funda since July l, 1973, in connection with
the collection, storage, or dissemination of crimmal history record information. Section
20.21(g) of the regulations requires submission of a state plan to LEAA setting out
procedures including operational procedures to do the following:
(g) Access end review. Insure the individual% right of access and
review of criminal history information for purposes of accuracy and
completeness by instituting procedures so that -
(1) any individual shall, upon satisfactory verification of his
identity, be entitled to review without undue burden to either the
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Honorable Joe Resweber - Page Three (Mw-95)
criminal justice agency or to the individual, any criminal history
information maintained about the individual and obtain a copy
thereof when necessary for the purpose of challenge or
correction. . . .
Pursuant to this requirement in the federal regulations, the Criminal Justice
Division of the Office of the Governor has prcposed to adopt rules and guidelines which
have been published in the Texas Register, VOL 4, No. 78, pp. 3767-3770, October 16,1979.
Pertinent portions of the proposed guidelines provide:
.Oll. Access and Review.
(a) Any individual shall, upon satisfactory verification of his
identity, be entitled to review without undue burden to either the
criminal justice agency or the individual, any CHRI [criminal
history record information] maintained about the individual and
obtain a copy of the portion challenged thereof when necessary for
the purpose of challenge cr correction.
(b) Points of review shall be the Texas Department of Corrections
(for inmates of TDC only), DPS Headquarters, and all sheriffs’
offices, police departments, and federal criminal justice agencies
which have fingerprint identification capability.
(c) Administrative review shall be provided and necessary cor-
rection made of any claim by the individual to whom the
information relates that the information ir inaccurate or
incomplete.
In addition to the above provisions relating to an individual’s right of access to
criminal history record information about him held by an agency subject to the federal
regulations because of receipt of federal LEAA funds, separate provisions of the
regulations deal with agencies which participate in the National Crime Information Center
(NCIC) operated by the Federal Bureau of Investigation. Section 20.34 of the LEAA
regulations provides:
S 20.34 Individual’s right to access criminal history record
information.
(a) Any individual, upon request, upon satisfactory verifica-
tion of his identity by fingerprint comparison and upon
payment of any required processing fee, may review criminal
history record information maintained about him in e
Department of Justice criminal history record information
system.
(b) If, after reviewing his identification record, the subject
thereof believes that it is incorrect or incomplete in any
respect and wirhes changes, correction or updating of the
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Honorable Joe Resweber - Page Four blw-95)
alleged deficiency, he should make application directly to the
agency which contributed the questioned information. The subject
of a record may also direct his challenge as to the accuracy or
completeness of any entry on his record to the Assistant Director
of the FBI Identification Division, Washington, D.C., 20537. The
FBI wiIl then forward the challenge to the agency which submitted
the data requesting that agency to verify or correct the challenged
entry. If the contributing agency corrects the record, it shall
promptly notify the FBI and, upon receipt of such notification, the
FBI will make any changes necemary in accordance with the
correction supplied by the contributor of the aiginal information.
28 C.F.R. S 20.34, as amended 43 Fed. Reg. 50,173-50174 Q978).
Your question is posed in terms of whether the Harris County Sheriff is required to
furnish an individual a copy of his own criminal history record. The federal LEAA
regulations providing a right to access require only that the individual be given a copy of
the information about him “when necessary for the purpose of challenge or correction.”
28 C.F.R. S 20.21tgXl). The comments ~1 the regulations indicate that the LEAA did not
intend the individual to be able to obtain a copy of hi record on demand. See Appendix -
Commentary on Selected Sections of the Regulations on Criminal History Record
Information Systems, 28 C.F.R. part 20, p 249, at 252-253. In light of the common-law
right of an individual to inspect records about himself, and the federal regulations and
guidelines discussed above, we answer your question as follows: The Harris County Sheriff
should adopt a reasonable procedure in order to permit an individual to inspect and review
criminal history record information about himself. A copy of such information should be
provided to the individual when necessary for the purpose of challenging QCcorrecting the
information about him.
You also ask whether the Harris County Sheriff is required to furnish a copy of a
criminal history record to an individual other than the one to whom the record pertains.
The federal LEAA regulations and the proposed guidelines of the Criminal Justice Division
speak only in terms of an individual’s right of access and review upon satisfactory
verification of his identity. They do not appear to contemplate that the individual may
exercise thii right through an agent. Generally, a person may by contract establish a legal
relatiOnShiD with another to authorize the other to transact business or manaze some
affair for -him. See 2 Tex. Jur.‘ld,Agency S L The relaticnship of attorney and&client is
one of Gent anbprincipal. Dow 357 S.W.2d 565 (Tex. 1962);
Texas Employers Ins. A&n v. Wermske, 349 S.W.?d 90 (Tex. 196B. While we believe that a
law enforcement official such as the sheriff may Dermit en individual to exercise his rkrht
of access to criminal history information about him for purposes of challenging-or
correcting that information through an agent such as his attorney, we have found no law
which would require the sheriff to do so.
You next ask whether the Sheriff is required to obtain identification from the person
seeking to inspect his own record,and what type of identification is required. The LEAA
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Honorable Joe Resweber - Page Five (NW-95)
regulations applicable to agencies which have received federal funds, 28 C.F.R.
S 20.21(g)(l), and the Criminal Justice Division’s’ proposed guidelines only require
“satisfactory verification” of the person’s identity. The Commentary on the LEAA
regulations explains thii provision as follows:
The drafters of the subsection expressly rejected a suggestion
that would have called frx a satisfactory verification of identity by
fingerprint comparkon. It was felt that States ought to be free to
determine other means of identity verification.
28 C.F.R. part 20, Appendix - Commentary on Selected Sections of the Regulations on
Criminal History Record Information Systems, p. 249 at 252, commentary on S 20.21(gm
We note that access to information in e DeDertment of Justice Svstem (NCIC) does
require verification of identity by fingerprint -comparison. 28 C.F.R: S 20.34. It is our
opinion that the Sheriff of Harris County may verify the identity of an individual seeking
access to his own criminal history record by any reasonable means satisfactory to the
Sheriff.
You next ask whether the Sheriff is required to obtain e fee from the person
requesting access to his criminal history record. The general rule is that in the absence of
some enactment providing for remuneration for a particular service, no fee may be
demanded therefor. 52 Tex. Jur.2d, Sheriffs, Constables, and Marshalls S 38, Attorney
General Opinion H-796 (1976). See Templeton v. Rybum, 59 Tex. 209 (1883). We have
found no specific authority for e Sheriff to collect a fee for providing en individual access
to inspect or copy his own criminal history record. Since the right to inspect or copy &es
not arise under the Texas Open Records Act, we do not believe that the provisions of that
Act concerning costs are applicable. See V.T.C.S. art. 6252-l7a, 29. However, we note
that expenses incurred in connection wx a Sheriff% operation of a Bureau of Criminal
ldentificetion “in keeping with the system in use with the Department of Public Safety of
this State or of the United States Department of Justice and/or Bureau of Criminal
Identification” are specifically authorized as expenses of a Sheriff which may be paid by
the Commissioner’s Court under article 3899, V.T.C.S.
SUMMARY
A law enforcement agency should permit an individual to review
criminal history record information maintained about him end
should provide the individual a copy of that portion of the record
the accuracy or completeness of which is disputed.
Very truly youm, l
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A” .’
MARK WHITE
Attorney General of Texas
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Honorable Joe Resweber - Page six (NW-951
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by William G Reid
Assistant Attorney General
APPROVED:
OPINION COMMRTEE
C. Robert Heath, Chaiiman
David B. Brooks
Tom Bullington
Jerry Carruth
Bob Gammage
Susan Garrison
Rick Gilpin
William G Reid
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