The Attorney General of Texas 

December 6, 197b 

MARK WHITE 

Anornsy General 

Honorable Joe Resweber 

liarrb County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Dear Mr. Resweber: 

Opinion No. MW-95 

Re: Access by an individual to his 

own criminal history record. 

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). 

p. 291 
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 commonlaw 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 

legal basis for an agency to disclose swmation -9i to 

at least provides a sufficient 

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 

P- 292 
; ;. 

. . 

- . . , 

. * 

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 correction 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 verification 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 

P. 293 
,. 

. , 

. 

_ I_ 

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 QC correcting 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 

p. 294 
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 

*? 

Aî MARK WHITE .í 

Attorney General of Texas 

p. 295 
. 

. , 

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 

. . 

P. 296