# The Attorney General ofTexas

December 6, 197b
MARKWHITE AnornsyGeneral

Honorable Joe Resweber liarrb County Attorney 1001Preston, Suite 634 Houston, Texas 77002
Dear Mr.Resweber: Opinion No. MW-95
Re: Access by an individual to his owncriminal 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 dIscsclosureunder an exception to the Texas Cpen Records Act. V.T.C.S. art. 6252-17a, S3taX6). Thiswas established inHouston Chronicle Publishing Co. v. City ofHouston, 531S.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. 50978); 183,p 50976); 1440976); 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 aspecial right ofaccess to the subject of records except in two situations. Spe-cial access is given to a governmental employee to hisown records inaproviso ofsection S(aXZ),and astudent isgive&a r@htofa&es to hisownrecordsunder 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 60976). The basiscn whichthe court inthe 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 OmnibusCrime Control and Safe Streets Act of 1968, as amended. 42 U.S.C. SS3701, 3731(a),and 3771(b).

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Acommon-law right ofacea which entitles anindividual to inspect records held by the government concerning that individual has been recagnized In Hutchins v. Texas Rehabilitation Commission, 544S.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 ownrecords even though aspecific statute made those records confidential as to the general public. Wehave 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 to -9i at least provides a sufficient e individual whom it concerns. The Texas Department of Public Safety has adopted apolicy that an individual has aright of access and review of his owncriminal 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. S552, end the Federal Privacy Act of 1974,5 U.S.C. S552a, 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 5USC. SS551@, 552(e), and 552a(a)(lX It has been held that the Texas Board of Pardons and Paroles isnot an “agency” within the definition in 5U&C. S551(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 1974applies to records held byan agency ofthis state or its political subdivisions. Another federal statute and the regulations issued thereunder may affect the disclosure of criminal history record information held bya state or local agency inTexas. 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. SS3701,3731(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 ofcriminal history record information isadequately provided for. The LEAA has issued regulations pursuant to this authority. See 28C.F.R. part 20. The regulations are applicable to any state or local agency which hasreceived LEAA fundasince July l, 1973, inconnection 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 dothe following:

(g)Access end review. Insure the individual% right ofaccess and review ofcriminal history information forpurposes ofaccuracy and completeness by instituting procedures sothat - (1) any individual shall, upon satisfactory verification of his identity, be entitled to review without undue burden to either the

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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 theTexas Register, VOL4,No. 78,pp. 3767-3770, October 16,1979. Pertinent portions ofthe proposed guidelines provide:

.Oll. Access andReview. (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 ofthe portion challenged thereof when necessary for the purpose ofchallenge 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 whichhave 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, uponrequest, upon satisfactory verification of his identity by fingerprint comparison and upon payment ofany 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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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 FBIwiIl 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 ofsuch notification, the FBI will make any changes necemary in accordance with the correction supplied bythe contributor ofthe aiginal information.
28C.F.R. S20.34, as amended 43Fed. Reg. 50,173-50174 Q978).
Your question isposed in terms ofwhether the Harris County Sheriff isrequired to furnish an individual a copy of his own criminal history record. The federal LEAA regulations providing aright to access require only that the individual be given acopy of the information about him “when necessary for the purpose of challenge or correction.” 28C.F.R. S20.21tgXl). The comments ~1the regulations indicate that the LEAA did not intend the individual to be able to obtain acopy ofhi record ondemand. 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. Inlight of the common-law right of an individual to inspect records about himself, and the federal regulations and guidelines discussed above, weanswer your question asfollows: The Harris County Sheriff should adopt areasonable procedure inorder topermit an individual to inspect and review criminal history record information about himself. Acopy ofsuch information should be provided tothe individual when necessary forthe 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 LEAAregulations and the proposed guidelines ofthe 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, aperson may bycontract establish alegal relatiOnShiD with another to authorize the other to transact business or manaze some affair for -him. See 2Tex. Jur.‘ld,Agency SL 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, 349S.W.?d90(Tex. 196B. While webelieve that a law enforcement official such as the sheriff may Dermit en individual to exercise hisrkrht 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 nolaw which wouldrequire the sheriff to doso. Younext askwhether the Sheriff isrequired toobtain identification from the person seekingto inspect his own record, and what type ofidentification isrequired. The LEAA

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regulations applicable to agencies which have received federal funds, 28 C.F.R. S20.21(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 wouldhave called frx asatisfactory verification of identity by fingerprint comparkon. It was felt that States ought to be free to determine other means ofidentity 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 S20.21(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: S20.34. It is our opinion that the Sheriff of Harris County may verify the identity ofan 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 tohis criminal history record. The general rule isthat inthe 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 S38, Attorney General Opinion H-796 (1976). See Templeton v. Rybum, 59 Tex. 209 (1883). Wehave found nospecific authority for eSheriff tocollect a fee for providing en individual access to inspect or copy his own criminal history record. Since the right to inspect orcopy &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, wenote 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 bepaid 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 ofwhich is disputed. Very truly youm, l

*? Aî .í MARK WHITE Attorney General ofTexas

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JOHN W.FAINTER, JR. First Assistant Attorney General
TED L.HARTLEY Executive Assistant Attorney General Prepared byWilliam GReid Assistant Attorney General APPROVED: OPINION COMMRTEE C. Robert Heath, Chaiiman David B.Brooks Tom Bullington Jerry Carruth BobGammage Susan Garrison Rick Gilpin William GReid . .

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