### THE ATTORB~EY GENERAL OF TEXAS

September 17, 1990

Honorable Mike Driscoll Opinion No. JM-1224 Harris County Attorney 1001 Preston Re: Suite 634 Whether information relating tocriminal cases is subject to Houston, Texas 77002 disclosure and related questions (RQ-1482)

DearMr. Driscoll:

You ask nine questions regarding the operation of the Harris County computer system and the authority ofa board created by theHarris the system. County Commissioners Court to manage

The questions stem fromdisagreements over the control of and access to information stored inthe computer. Before considering your questions, we will briefly review /" the factual information supplied byyour office and others.

InOctober of 1977the commissioners court created a county department called theJustice Information Management System (JIMS),evidently forthepurpose ofoperating and maintaining the county's central computer system.1 The duties of the department include, among other things, the programming of the central computer to meet the needs of those county offices with authorized access to the system, the training of county officials and employees intheuse of the computer, and the assignment of passwords and transaction codes to control access to information stored in the computer. Some of these tasks areperformed in with the county data processing department. conjunction

Your request for this opinion isprompted by the use of the county computer tocollect and maintain information regarding pending and closed criminal cases. You inform us that the district clerk, sheriff, the county thedistrict attorney, the county criminal courts, the county pre-trial

1. Asweunderstand it, the central only electronic data processing computer is the
resource available to most county offices.
rHonorable Mike Driscoll -Page 2 (JM-1224)

services agency, the county adult probation department and juvenile probation department, justices of thepeace, and county constables all store information concerning criminal
cases inthe computer. Though controls areprogrammed into the system by JIMS and the information data processing department,

originally collected and entered into the computer by one agency may laterbe retrieved andupdated by other agencies orbe integrated with information collected by other agencies. These concerning the conditions have raised questions "custody" and control of criminal case information stored inthe county computer.

The commissioners court appointed an executive board to
oversee the operation ofJIMS and the computer system. The board was specifically empowered to "establish and audit security codes" and to "authorize data elements to be entered and to whom they shall be distributed." The board's membership iscomposed of the administrative judge of the district courts trying criminal cases, the presiding judge of the county criminal courts at law, a judge of one of the family district courts, a judge of one of the juvenile district courts, a justice of the peace, the district attorney, thedistrict clerk, the county sheriff, and acounty constable.

In 1985 theJIMS executive board executed an with the Texas Department agreement of Public Safety (DPS) regarding
access to the Texas Law Enforcement Telecommunications Systems (TLETS),a statewide clearinghouse for information collected and' exchanged between law enforcement agencies throughout the state. The system, managed and operated by the DPS, provides local lawenforcement agencies access to the resources of theNational Crime Information Center, the National Law Enforcement Telecommunications System, the Texas Crime Information Center, the vehicle registration files of theMotor Vehicle Division of the Texas ofHighways Department

and Public Transportation, and the driver's license files of the DPS.

Among other things, the agreement between the JIMS board and the DPS requires JIMS to abide by all applicable state and federal laws, as well asany policies and procedures adopted by the administrators of the information systems that comprise the network. Though the agreement is silent on thematter, theJIMS board apparently interpreted the agreement to also impose on itthe duty to ensure compliance by all users of the system. Violation of

P. 6486Honorable Mike Driscoll -Page 3 (JM-1224)

applicable policies may result inan immediate suspension of service.2
Security breaches at the county levelprompted theJIMS board to adopt security policies
access to the computer andprocedures governing system andretrieval of information collected incriminal proceedings. allpersons The board now requires

with access to the system to execute a form acknowledging that theyunderstand the security policies and thatviolation of thepolicies andprocedures may result in termination of their employment. The board also has instituted apolicy ofunilaterally terminating access to the computer system bypersons, offices, deemed in or departments

noncompliance with the 1986, this policy was security policies. In invoked against the office of the district clerk for its refusal to execute the security forms.

With these facts inmind, we nowproceed toyour first set ofquestions.

1. If the district clerk enters information contained in instruments, pleadings, orders, **and** documents in criminal cases in the county's computer to produce indices, registers **and dockets,**  **are** such electronic/computer **records** public? Does such information constitute exempt criminal justice information?

2. **Are** such computer records part of the district **clerk*s** tofficial records'?

These questions relate to the status of information collected by the district clerk from court documents and transmitted to the county computer. The information the district clerk transfers to the computer includes basic data such as thedefendant's name and date ofbirth, the name of his attorney, and other information reflecting progress of

2. We are informed that the DPS, inthe exercise of its discretion, designated the Harris County central computer system as the sole link to the TLETS network in Harris County. All local lawenforcement agencies inHarris County that receive TLETS, including those not affiliated with the county government, must obtain access to the system through theHarris County computer.

P. 6487Honorable Mike Driscoll -Page 4 (JM-1224)

the defendant's case through the court system. The district clerkmaintains the original documents fromwhich the information was obtained, the document, orboth. amicrofilm ormicrofiche copy of With this information the district clerk creates anumber of separate documents including indices,
case summaries, case status reports, calendars, and other documents relating topending orclosed criminal cases.

Youhave informed us of acase filed with the Texas Court ofCriminal Appeals that dealswith issues similar to the onesyou pose. It isstyled Houston Chronicle PublishinoCo. v. The Honorable Charles Hearn. District Judae, 263rd District Court. Harris Countv. Texas, No. (filedNov. 22, 1989). 20,998-01 At issuewas anorder of the administrative judge of the district courts ofHarris County that forbids the district clerk and county sheriff from disclosingthe street addresses or telephone numbers ofany defendant inany criminal case inthe district courts until an attorney ishired orappointed torepresent the defendant.

Anewspaper publisher and a reporter contested the order. They attacked itas an infringement of their ofaccess to court filesunder the right First Amendment to the United States Constitution and article I, sections 8, 10, and 13, of the Texas Constitution. They filed a motion before the Court ofCriminal Appeals for leave to file application forwrits ofmandamus andprohibition.

The Court ofCriminal Appeals denied themotion without written order'on March 7, 1990. As aresult of this ruling, the order of the district judge prohibiting the district clerk and sheriff from releasing the specified information remains ineffect. It is inappropriate inan opinion of the attorney general to review or interpret the orders of the courts mandating that certain information be kept confidential. See. e.a OpenRecords Decision No. 560 (1990). in light of the'possibility of And further litigation on this matter, we will defer answering your questions as they relate to records inthe custody of the district clerk until thematter is finally resolved. If, following resolution of thismatter, you still require anopinion on the status of the records of the district questions at that time. clerk, please resubmit your

3. What criminal history information, if any, which is maintained or which may be accessed through the county's computer may be disclosed by the district clerk and other county officials?

P. 6488Honorable Mike Driscoll -Page 5 (JM-1224)

We assume that byuse ofthe term "criminal history information" you refer to information relating to criminal
cases, the disclosure ofwhich maybe governed by state or federal lawand regulations.

Federal lawand regulations govern the dissemination of criminal history record that collect, maintain, information by agencies and exchange such information with support provided by the federal government for such purposes. See 42U.S.C. § 3789g(c): 28C.F.R. Criminal history record information isdefined as§ 20.21(b).

information collected by criminal justice agencies on individuals tifiable descriptions consisting of idenand notations of arrests, detentions, tions, indictments, informaorother formal criminal charges, and anydisposition arising therefrom, sentenciw ,correctional supervision, and release.

28C.F.R. §20.3(b). The federal regulations are intended toprotect individual privacy and to insure that criminal history information, wherever it appears, is stored, and disseminated in a collected,
manner that insures its completeness, accuracy, and security. Id.520.1.

State and local agencies maintaining and disseminating criminal history information with federal assistance are subject to certain restrictions ondissemination set forth inthe federal regulations. id. See 55 20.20 - 20.25. These restrictions do not information contained in apply to criminal history court records proceedings. ofpublic judicial

Id. 520.20(b)(3). Thus, federal regulations have no bearing on the disclosure of criminal history information inrecords of public judicial proceedings that
are inthe custody of the district clerk. There remains, however, the issue of thedisclosure of information from court records under state law, an issue leftunresolved by theHouston Chronicle v. Hearn case. For this reason, we areunable toanswer your third question as itrelates to thedistrict clerk at this time. We can answer the question
as itapplies to other county anddistrict offices.

The federal regulations described here affect two categories of criminal history information: (1) information collected, stored, agencies, and and disseminated by state or local

(2) information obtained from any United States Department of Justice criminal history record information system.

p. 6489Honorable Mike Driscoll -Page 6 (JM-1224)

The regulations affecting state and local operations do not purport tomake **any** criminal history information confidential, but authorize the states and local governments to determine the purposes for which criminal history record information may be disseminated pursuant to state law, executive order, local ordinance, orarule, decision, or order ofa court. a 5 20.21(c)(3). The regulations do not limitdissemination by a state or local agency of criminal history information that originates fromthe agency itself. See Open Records Decision No. 144 (1976). One regulation allows dissemination to "individuals and agencies for any purpose authorized by statute . . . as construed by appropriate state or local officials or agencies." Id. 520.21(b)(2). These provisions require consultation of the Open Records Act,V.T.C.S. article 6252-17a, and interpretations of the actby the courts and this office.

The availability of information relating to arrests under section 3(a)(8)of theOpen Records Act was determined inHouston Chronicle Publishinb Co.v. Citv ofHouston 531 S.W.2d 177 (Tex. Civ.ADD. -Houston rl4thDist.1 i975). writ ref'd n.r.e. oer curiam 536 S.W.22 559 (Tex: and summarized inOpen Record; Decision No. 19763; 127 (1976). The holding inthat case prohibits thedisclosure to the public of the chronological history ofan individual's arrests and their disposition. 531 S.W.2d at 187-88.

The federal regulations referenced here also address the dissemination ofcriminal history information contained inanyUnited States Department ofJustice criminal history information system, including NCIC. See 28C.F.R. 58 20.30

- 20.38. Dissemination of criminal history information contained in any such system is authorized in four instances. See id. 520.33. Inaddition, the subjects of criminal historyxformation are allowed access to their own criminal histories. Id. §20.34; see Open Records Decision No. 565 (1990). These regulations are notgermane to the office ofdistrict clerk, since itdoes nothave access to Department ofJustice criminal history information systems. County offices that have access to such systems must, of course, abide by federal regulations andpolicies in order to receive assistance fromthe information systems. See 28 C.F.R. 520.36.
Consequently, county officials are not required to disclose to the public criminal history information maintained on theHarris County computer system that is collected by acounty or district office, even if acquired without the assistance ofany Department ofJustice criminal history information system. Information obtained fromthese

P. 6490P Honorable Mike Driscoll -Page 7 (JM-1224)

federal sources may be disseminated in accordance with federal regulations.

State lawalso addresses the collection and dissemination of criminal history information by criminal justice agencies. Chapter 60 of the Code ofCriminal Procedure, articles 60.01 through 60.09,was enacted by the 71st Legislature and became effective on September 1, 1989. Acts 1989, 71st Leg., ch. 785, 5 6.01at 3548. Itdelegates to the Texas Department of Criminal Justice (TDCJ)the responsibility of establishing a data base for a centralized criminal history record information system. Code Crim. Proc. art. 60.02(a). The DPS isgiven the duty of maintaining a data base for acomputerized criminal history information system that serves asa "record creation point" forcriminal history information maintained by the state. Id. art. 60.02(b).

Under chapter 60,criminal justice agencies are expected tomaintain and report to the TDCJ and the DPS specified information relating to criminal cases, with certain exceptions. See L arts. 60.05, 60.06(a). Criminal justice agencies must also provide other criminal justice agencies

- with access to their own criminal history information

systems. The duties imposed on criminal justice agencies by article 60.06 are also imposed on the clerks of the district and county courts. & art. 60.06(e).

Information onan individual collected by the TDCJ and the DPS from criminal justice agencies and stored in a central location that consists of

an identifiable description andnotation of
an arrest, detention, indictment, information, orother formal criminal charge and a disposition of the charge including sentencing, correctional supervision, and release
. . .is not subject to public disclosure except as authorized by federal or state lawor regulation.3

3. This language parallels the definition of "criminal history record information" found at title 28, section 20.3, of the Code of Federal Regulations andquoted inapreceding

- paragraph.

P* 6491Honorable Mike Driscoll -Page 8 (JM-1224)

Id. art. 60.06(b). This limitation does not apply to a document ofa criminal justice agency that isthe source of information collected by the TDCJ. Id. art. Similarly, 60.06(C).

an individual's criminal history record may not be disclosed to the public by either a criminal justice agency or the Criminal Justice Policy Council ifthe record isprotected by state or federal law orregulation. a art. 60.03(b). Chapter 60 thus requires anexamination of other state and federal laws governing disclosure of criminal history information. Seeaenerally Open Records Decision No. 565 (1990).

4. **Who** is the **\custodian*** of all or portions of the records contained in the county's computer?

This question isprompted bygeneral concerns over the control and B1custody**of information stored inthe county computer. TheJIMS board, you advise, contends it is the custodian of all information housed inthe county computer and isthereby authorized to determine whomay have access to that information. You emphasize that the question of control issignificant because computer programming allows a county office to manipulate information in the computer filesof other offices simply byupdating information in its OWn computerized records. notation inthe The example you give is a records of a court that a defendant in a criminal case is released on personal recognizance. Once this information isentered intothe court's or the district clerk's computer files, the computer system automatically updates the information incomputer files created for the
same case by other county offices

ordistrict attorney). (e.a.,the county sheriff You acknowledge that thismay be an efficient use of the county it improperly computer, butyou believe that

wrests control officers whomay have from the hands of county
a legal duty toretain control over such information.

YOU argue that county officers, designated the custodians of records of their respective offices by the Open Records Act, should retain control of information maintained by their offices, including information housed in the county computer. We agreewith your conclusion, but note that the issue of control is legislation. resolved by recent

Prior to 1989, therewas little lawexpressly governing the establishment or operation of recordkeeping system for the use of coun:y computerized
or district officers. See. e.a., Code Crim. Proc. art. 2.26 (repealed

P. 6492Honorable Mike Driscoll -Page 9 (JM-1224)

in 1989, provided that commissioners court could authorize, among other things, the electronic entry, storage, and retrieval of records which the Code of Criminal Procedure requires county officers tokeep); Gov't Code 5s 51.801 - 51.807 (authorizing the electronic filing of certain documents indistrict and county courts, subject to rules andprocedures adopted by the Supreme Court of Texas). Authority forthe establishment ofa computer system by a commissioners court isnow expressly recognized inthe Local Government Code.

Subtitle CofTitle 6of the Local Government Code was amended during the 71st Legislative Session and designated the Local Government Records Act. Acts 1989, 71st Leg., ch. 1248,at 4996. Section 205.002 of the Local Government Code, enacted aspart of the Local Government Records Act, provides that "[a]ny local government record data may be stored electronically in addition toor instead of source documents in paper or other media," subject to the provisions ofchapter 205of the Local Government Code and rules adopted under it. This provision authorizes the storage of information on computer. Local Gov't Code 5205.001(l) (definition of "electronic storage"). I'Local government record data" isdefined simply asany information that comprises. a local government record under law, regulation, rule of court, ordinance, or administrative procedure. Id. § 205.001(2). With exceptions not applicable here, "localgovernment record data" is defined tomean

any document, paper, letter, book, map,

photograph, sound or video recording, microfilm, magnetic tape, electronic medium,

or other information recording medium, regardless ofphysical formorcharacteristic and regardless ofwhether public access to it isopen orrestricted under the laws of the state, created or received bv a local aovernment or anv of its officers or emolovees vursuant to law, includina an ordinance, or inthe tranSaCtiOn Of DUbliC business. (Emphasisadded.)

Id. §201.003(8).

The term "local government" includes, among other entities, acounty, "including all district and precinct offices of a county." Id. 5201.003(7). District and precinct offices such as the offices ofdistrict attorney,

p. 6493Honorable Mike Driscoll -Page 10 (JM-1224)

-.

district clerk, justice of the peace, and constable are classified as county offices for thepurposes of the act.

The subject of control and custody of information collected by county officers and stored electronically in a computer isaddressed by the Local Government Records Act. The act identifies three agents ofcounty government -- the commissioners court, Yecords management officers," and "custodians" -- and prescribes in careful detail their duties regarding themanagement andpreservation of county records. See id. §§203.001 - 203.003, 203.021 - 203.023.

The "records management officer" iseither an elected county officer ora person, office, orposition designated by the governing body to serve in that capacity. Seeid. 55201.003(14), 203.001, 203.025. The duties of the records management officer vary, depending onwhether the particular county office ordepartment iselective ornonelective, but ineither case the officer ismade chiefly responsible for the administration ofa records management program and the protection and preservation of the records of county offices. See id. S§203.002, 203.023. The 18custodian1*of records isthe appointed or elected public officer who under state constitution, state law, ordinance, or administrative policy is incharge ofanoffice that creates or receives localgovernment records. Id. §201.003(2).

A significant feature of the Local Government Records Act is itsallocation ofauthority todevelop and implement

arecords management program --h, thepolicies, methods, andprocedures for themanagement andpreservation of county records. See id. §§203.005, 203.026. It isthis aspect of the act that settles the general question of control and custody of information storedby computer.

The commissioners court isresponsible forestablishing
arecords management program fornonelective county offices. See id. 55 203.021, 203.026. Elected county office& are designated the "records management officers" for their respective offices andaredelegated preeminent authority to develop and administer the records management program for their offices. Inaddition, elected county officers are chiefly responsible foradopting records control schedules, preparing electronic storage authorization requests and records destruction requests, andpreserving and protecting certain records of their offices. Id. 5 203.002.

The elected county officer isgiven discretion to adopt specific records management procedures and techniques, so long as they are consistent with regulations promulgated by I,

P. 6494, Honorable Mike Driscoll -Page 11 (JR-1224)

the State Library and Archives Commission. 55 201.003(l), 203.002, 203.005(b). See+. The commission required to adopt standards and issue regulations for tFZ microfilming of local government records and the electronic storage of local government record data ofpermanent value.4 Id. S§ 204.004, 205.003. It has discretion to adopt standards for the electronic storage of records with a retention period ofat least tenyears. Id. 5205.003.

These provisions specifically address certain kinds of records and limit thediscretion ofelected county officers to adopt management procedures for those records. We believe elected county officers have complete discretion in adopting records management procedures for computerized records or information not covered by these provisions -- l.e., any computerized record or information that does not have a retention period prescribed by law or that has a retention period of less than ten years. If the State Library andArchives Commission elects not to adopt standards for the electronic storage of records with retention periods of tenyears or longer, we think elected county officers would have authority toadopt reasonable standards forthose records as well. Moreover, we think elected F county officers have the implied authority to prescribe

reasonable security and controlmeasures forany information received by their offices and stored electronically, even those records covered by the commission's rules. Cf. Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972) (public officers have implied power to achieve power or object expressly granted): V.T.C.S. art. 6252-17a, §5(a) (described below).

The Local Government Records Act anticipates that elected county officers will establish an independent recordsmanagement program for their offices, but allows elected officers to delegate the administration of the program to the office established by the commissioners court fornonelective county offices. Id. §203.005(g). Elected county officers may also delegate their responsibilities to the records management officer for nonelective offices in lieu ofadopting an independent program. & Applied to Harris County, these provisions mean elected county officers

4. A l*recordofpermanent value" isone forwhich the retention period issuedby the commission (thetime during which the record may not be destroyed) is given as permanent. Local Gov't Code §201.003(10).

P. 6495,

Honorable Mike Driscoll -Page 12 (JM-1224)

may delegate theperformance of their duties under the Local Government Records Act toJIMS if it is designated the records management officer fornonelective offices inHarris County.

Inthe absence of such adelegation of authority by elected county officers, the role of the commissioners court inthemanagement of the records ofelected county officials is largely supportive. Id. 5203.003 (commissioners court shall "promote," l'support,@'and "facilitate" the efficient and economical creation, maintenance, management, and preservation of the records ofelective county offices).

The primacy of elected county officers over the control andpreservation of the records of their offices is also acknowledged inthe Open Records Act. Section 5of that act
was amended by the bill enacting the Local Government Records Act to designate anelected county officer the "officer forpublic recordsl' of the office. V.T.C.S. art. 6252-17a, 5 **5(a).** The officer for public records is responsible under section 5 forensuring the protection, and accessibility, preservation of vublic records, includina records stored on computer. See: e.a,, Opinion JR-672 (1987). Attorney Generai

These provisions clearly establish that control of information created or received by elected county officers5 pursuant to law or in the transaction ofpublic business remains with the elected officers evenwhen the information is stored in a computer system that serves all offices. county

These provisions donot depart from established law, but merely reflect principles that are entrenched inthe lawof this state. firmly &8 Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5thCir. 1980) (elected county officials inTexas hold "virtually absolute sway over the

5. By its terms, the Local Government Records Act designates elected llcounty" officers as records management officers for their respective offices, omitting any reference to elected district andprecinct officers. As we noted earlier, however, distri,ct andprecinct offices of a county are treated aspart of acounty under the act. Id. 5201.003(7). Byextension, when the act speaks of elective "county" offices, the legislature presumably intended to address elective district and precinct offices aswell, at leastwhere these offices store information ona computer system sharedwith county offices.

P- 6496Honorable Mike Driscoll -Page 13 (JM-1224)

particular tasks orareas ofresponsibility entrusted to [them]by state statute").

Where the duties of county officers are clearly delegated by statute, the commissioners court has no power todisplace the authority of such officers by the creation ofanagency toperform such duties. &g Aldrich v. Dallas County, 167S.W.2d 560 (Tex. Civ.App. -Dallas 1942, writ dism'd); Navarro Countyv. Tullos, 237 S.W. 982 (Tex. Civ. APP. -Dallas 1922, writ ref'd); Attorney General Opinion JM-1074 (1989). The commissioners courtmay not, moreover, confer onan agent orother officer authority the court may itself not exercise. Jones v.Veltmann, 171 S.W. 287 (Tex. Civ.App. - SanAntonio 1914, writ ref'd). An elected county officer's assumption of the powers and duties conferred by the Local Government Records Act effectively bars the commissioners court or its agent from displacing the county officer from this position of responsibility. See. e.a., Attorney General Opinion JM-1074 (1989).
Accordingly, in answer to your fourth question we conclude that elected county officers inHarris County are charged by statute with the control, management, andpreserP vation of information created orreceived by their offices

pursuant to law or inthe transaction ofpublic business, including information that isstored in theHarris County computer system. V.T.C.S. art. 6252-17a; Local Gov't Code 55 203.002, 203.005, 205.002. Neither the commissioners court nor the agency created by itto manage the county computer systemmay deprive elected county, district, and precinct officers of this authority. Elected county officers may delegate certain ofthese duties to the office created by the commissioners court tomanage the records of nonelective county offices. Ed. 5

### 2o3.oo5(g).6

6. It should benotsd~that article 60.09 of the Code ofCriminal Procedure authorizes the commissioners court to appoint a "local data advisory board" toassist and advise the court onmatters relating to the collection and transfer of criminal history information at the county level. The membership of the board parallels the membership of JIMS. See Code Crim. Proc. art. 60.09(b). Because .the greater burden of compliance with chapter 60 falls on those officers eligible forappointment to the advisory board, we do not believe the authority to appoint advisory boards under article 60.09 constitutes supervening authority to manage (FootnoteContinued)

P. 6497Honorable Mike Driscoll -Page 14 (JM-1224)

5. What authority does the executive board of the Justice Information Management System (JIMS) or the commissioners court have to enforce any state and/or federal statutes relating to the dissemination of improper ariminal justice information and to require other county departments and/or officials to adhere to security and privacy guidelines promulgated by the executive board and/or commissioners court?

This question presumably relates to the security policies adopted by theJIMS board described earlier in this opinion.

As the discussion of thepreceding question made clear, theprimary responsibility tomanage and control information received by elective county offices iswith elected officers and, for nonelective offices, county with the commissioners court. Likewise, we think the duty toobserve and comply with relevant lawsgoverning access and dissemination ofcriminal justice information rests with elected officers for their respective county offices and with the commissioners court for nonelective offices. We have located no authority, of the Code of Criminal including chapter 60

Procedure, that would generally designate the commissioners court as the agency responsible for the enforcement of criminal justicestate or federal laws governing access to information stored inthe county's computer system. It is not inconceivable, however, that the commissioners court could, with the cooperation of elected county officers, promulgate effective security policies that preserve thepower of elected county officers tomanage and control the information collected offices.7 andgenerated by their

,-~ (Footnote Continued) the computerized records of all county offices. It is therefore unnecessary to consider the effect of the possible appointment of the JIMS board board under this provision. as the local data advisory

7. You have identified anobvious solution to the dilemma facing the county --i.e., the installation of separate computer systems for each county office. Alternatively, the county might consider creating a separate (Footnote Continued) -\

1

P. 6498Honorable Mike Driscoll -Page 15 (JM-1224)

6. lfhatliability may the JIMS exeautive board incur if information which is contained in a computer system owned by Harris county and whiah is used jointly by the Harris County Sheriff, the Harris County District **Clerk,** the Adult Probation Department, the Harris County Data Processing Department, and JIM8 and other county departments for the functions of said respective departments and offices and JIM8 is disseminated contrary to the security and privacy guidelines promulgated by the executive board, the commissioners court and/or other state and federal agencies?

This question isnot one that canproperly be answered bythis office. Its speculative and fact-bound nature makes itappropriate for your office to advise its clients thedevelopment of appropriate facts upon inparticular cases. See Gov't Code 545.201.

7. Does theJIM8 executive board and/or commissioners court have the authority to execute an agreement with the Texas Department of Public Safety regarding

access to the National Crime Information Center (NCIC) operated by the Federal Bureau of Investigation (FBI) and the Texas Crime Information Center (TCIC) operated by the Texas Department of Public Safety on behalf of Harris County and other local law enforcement agencies that have access to Harris County's computer?

This question relates to the agreement executedby the JIMS board with the DPS described at the fore of this

(FootnoteContinued) computer system solely for the purpose of receiving and distributing criminal history information and information fromthe TLHTS andNCIC networks that isaccessible only by the lawenforcement agencies entitled toparticipate in the networks. The efficacy of aparticular proposal, however, isamatter forthe discretion of the commissioners court and isbeyond the province of this office todecide.

P. 6499,

Honorable Mike Driscoll -Page 16 (JM-1224)

opinion. Assuming the DPS actedwithin selecting theHarris itsauthority in

with the TLETS system,County computer as the county's link
we think the commissioners court had the implied authority to execute the agreement in question. Seeaenerally, 35D.Brooks, Countv and Soecial District Law 55.13 (TexasPractice 1989). We also think theJIMS board
was authorized to execute the agreement on behalf of the commissioners court, assuming the board was appointed its agent forthat purpose pursuant to section 262.001(a)(3) of the Local Government Code. wsenerallv Lumber Co

.v.Hutchinson County, 88 S.W. ;12Jackson-Foxworth

1905, nowrit). (Tex.Civ.App.

8.

9. May the county enter into agreements with public and non-public user8 for dial-up, **direct** computer access to records contained in the county's computer without the ooneent of the \custodian/s* of the original paper or microfilm/microfiche of said records?

If the answer to question 8 is yea, is the \custodian* responsible and liable for fees which may **be** due for such ser**vices?** Who is liable if the fees are not collected for access to and/or copies of such records?

These questions are in reference to a program authorized by~the commissioners court under which private parties, typically law firms, are allowed direct access to the county computer. The firms information maintained by are granted access to thedistrict clerk on civil and family lawcases inthedistrict courts. Access to criminal and juvenile case information is not authorized. The private users receive access essentially ona subscription basis, paying the county fees for the training of the ukersl employees, the assignment of sign-on codes;8nd the amount of time logged on the county system. Theusers supply their
own equipment anddedicated telephone lines.

You note the apparent absence of izing theprogram you inquire about.8 lawexpressly authorInaddition "dial-up"

8. Sections 51.801 through 51.807 of the Government Code authorize andgovern the electronic filing of certain (Footnote Continued)

P. 6500Honorable Mike Driscoll -Page 17 (JM-1224)

,- systems are particularly vulnerable to and

manipulation by computer hackers entry and security require additional

controls. a Agranoff, Curb on Technoloav: Liabilitv forFailure to Protect Comvuterized Data Aaainst Unauthorized Access 5 Santa Clara Computer & Technology LawJourn; at 263, 280-86 (1989). High

Wehave previously determined that elected county, district, and precinct officers, rather than the commissioners court or theJIMS department, aregiven the duty to manage and control the information received andgenerated by their offices and stored on computer. In the absence of statutory authority, the commissioners court isnot, in our opinion, authorized tograntmembers of the public access to the computerized records ofelective precinct offices.9 county, district, or
question, In light ofour answer toyour eighth

it isunnecessary to answer your final question.

SUMMARY

Elected county, district, and precinct officers in Harris County are charged by statutewith the control, management, and preservation of information created or received by their offices pursuant to law or in the transaction of public business, including information that is stored in the Harris County computer. V.T.C.S. art. 6252-17a; Local Gov't Code §§ 203.002, 203.005, 205.002. Neither the commissioners court nor an agency created by itto manage the county's computer system may deprive

(FootnoteContinued) documents inthe office ofthe district clerk, butwe are
unaware ofany lawthat authorizes the electronic retrieval byprivate persons of information contained in documents filedwith thedistrict clerk.

9. You suggest that "dial-up*'access to the records of county offices maybe permissible ifconsent isgiven by the county officers whose records areaffected andprovided no confidential information is made available to the subscribers. It isunnecessary todecide this issue at this time, sinceyour question refers to the "county" (which we interpret tomean the commissioners court) and the factsyou stipulate refer toactions taken by the commissioners court rather than a specific county officer.

p. 6501Honorable Mike Driscoll -Page 18 (JM-1224)

elected county, district, and precinct officers of such statutory authority. Elected county officers may delegate certain of these statutory duties to the office created by the commissioners court to manage the records of nonelective county offices. Local Govtt Code g203.005(g).

Neither the commissioners court nor the agency created by it tomanage the county computer system isgenerally authorized to enforce state or federal laws concerning the dissemination of criminal history information. The commissioners court has the implied authority to contract onbehalf of the county with the Department of Public Safety to receive access to the Texas Law Enforcement Telecommunications System. The commissioners courtmay not authorize private
users to obtain "dial-up" access to the records of elected county, district, or precinct officers that are stored on the county computer system.

Very truly yo

3 Jy M MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee

Prepared by SteveAragon Assistant Attorney General

p. 6502