                               ATTORNEY GENERAL                      OF   TEXAS
                                             GREG        ABBOTT


                                              September 27,2004



The Honorable Richard J. Miller                           Opinion No. GA-0255
Bell County Attorney
Post Office Box 1127                                      Re: Whether a person may waive the prohibition
Belton. Texas 765 13                                      on public access to the person’s criminal history
                                                          information that is subject to a nondisclosure
                                                          order (RQ-0209-GA)


Dear Mr. Miller:

        You request an interpretation of Government Code section 411.081(d), which provides for
the nondisclosure of certain criminal history information. You first ask:

                  May a person affirmatively waive the prohibition on public access to
                  his or her criminal history information that is subject to an order of
                  nondisclosure?’

         You also ask how the custodian of records should respond to an inquiry for criminal history
information found in documents subject to a nondisclosure order issued under section 411.08 1(d),
that is, whether section 411.08 1 permits a law enforcement agency to state that it has “no disclosable
record” to a person not authorized to receive the information, instead of stating that it has “‘no
record.” Request Letter, supra note 1, at 1,

        You state that Bell County recently received an inquiry from the United States Office of
Personnel Management (“OPM”), 5 U.S.C. $4 1101-l 105 (2000), concerning an individual who was
seeking federal employment. See Request Letter, supra note 1, at 1. The communication included
an “Authorization for the Release of Information” signed by the individual authorizing access to the
individual’s criminal history information. See id. The criminal history information, however, is
subject to anondisclosure order issued under section 411.081(d) ofthe Government Code. See TEX.
GOV’T CODEANN. 5 411.081(d) (Vernon Supp. 2004.05).

        Government Code chapter 411 establishes the Department of Public Safety (“DPS”) and
defines its duties. Subchapter F, which includes section 411.081, applies to criminal history record
information.    See id. 5 411.082(2) (Vernon 1998) (criminal history record information “means


         I Letter from Honorable Richard J. Miller, Bell County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Apr. 8, 2004) (on file with Opinion Committee, also ovaikzble af http://www.oag.state.tx.us)   [hereinafier
Request Letter].
The Honorable Richard .I. Miller - Page 2                 (GA-0255)




 information collected about a person by a criminal justice agency that consists of identifiable
 descriptions and notations ofarrests, detentions, indictments, informations, and other formal criminal
 charges and their dispositions”).     Section 411.081(d) authorizes a person placed on deferred
 adjudication for certain offenses to petition the court “for an order ofnondisclosure,”  which would
prohibit “criminal justice agencies from disclosing to the public criminal history record information
related to the offense givingrise to the deferred adjudication.” Id. $411.08 1(d) (Vernon Supp. 2004-
 05). Section 411.082 defines “criminal justice agency” for purposes of Subchapter F as “a federal
 or state agency” engaged in administering criminal justice under a statute or executive order or “a
nongovernmental      railroad or campus police department that has obtained an originating agency
 identifier from the Federal Bureau of Investigation.” Id. 3 411.082(3) (Vernon 1998). But see id.
 4 411.081(a)(2) (Vernon Supp. 2004-05) (referring to “‘police blotters maintained by a criminal
justice agency”). The section 411.082 definition of “criminal justice agency” does not apply to
 section 411.08 l(d), which provides for nondisclosure orders “[nlotwithstanding anyotherprovision
 of this subchapter.” Id. 5 411.081(d).       A “criminal justice agency” within section 411.081(d)
 includes a local criminal justice agency.

          Information subject to a section 411.081(d) nondisclosure order is “excepted from the
requirements of [Government Code] Section 552.021,” which provides that “[plublic information
is available to the public.” Id. 5 552.142(a) (Vernon Supp. 2004-05); see also id. 5 551.021. The
person who is the subject of the order “may deny the occurrence of the arrest and prosecution to
which the information relates and the exception of the information under this section, unless the
information is being used against the person in a subsequent criminal proceeding.” Id. 8 552.142(b).
When a nondisclosure order is issued, “the clerk of the court shall send a copy of the order” to the
DPS Crime Records Service, and DPS “shall send a copy of the order.                   to all law enforcement
agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional
facilities, central state depositories of criminal records, and other officials or agencies or other
entities of this state or of any political subdivision of this state, and to all central federal depositories
of criminal records that there is reason to believe have criminal history record information that is the
subject of the order.” Id. § 411.081(g).

        The information may be disclosed in limited situations, however.        Section 411.081(d)
provides that “[a] criminal justice agency may disclose criminal history record information that is
the subject of the order to an individual or agency described by Section 411.083(b)(l), (2) or (3).”
Id. 5 411.081(d). Thus, a county criminal justice agency that maintains criminal history record
information subject to a section 411.081(d) nondisclosure order may disclose the information to the
following individuals or agencies:

                         (1) criminal justice agencies;

                        (2) noncriminal justice agencies authorized by federal statute
                or executive order or by state statute to receive criminal history record
                information:
The Honorable Richard .I. Miller - Page 3             (GA-0255)




                        (3) the person who is the subject ofthe criminal history record
                information.

                        .


Id. § 411.083(b).

         Section 411.083(b)(3) provides the individual who is the subject of the information with
access to it, and he may disclose it to anyone he chooses. However, no provision authorizes the
custodian to release the criminal history record information solely because the subject ofthe records
has attempted to waive the court order. See id. 5 4 11.08 1(d) (order prohibits criminal justice agency
from disclosing the criminal history record information to the public). We find no Texas law
authorizing an individual to waive the prohibition on public access to his criminal history
information that is subject to a nondisclosure order.

         Bell County, however, received the “Authorization         for Release of Information” in
conjunction with an inquiry from OPM. Section 411.083(b)(2) is relevant to releasing the
information in this case. OPM is authorized to perform background investigations of prospective
federal employees to ensure that applicants have not broken the law or engaged in other conduct
making them ineligible for federal employment. See Mittleman Y. Ofjce of Pen Mgmt., 76 F.3d
 1240, 1243 (D.C. Cir. 1996); see also 5 U.S.C. 55 1104 (2000) (president may delegate personnel
management functions to OPM); 1304 (investigations to be conducted by OPM); 3301 (president
may prescribe regulations for admission ofindividuals into civil service); 5 C.F.R. pts. 73 1,732,736
(2004) (authorizing OPM to investigate applicants for federal employment).         OPM is subject to
Executive Order Number 10,450, which provides that “[tlhe appointment of each civilian officer or
employee in any department or agency of the Government shall be made subject to investigation.”
Exec. Order No. 10,450,§ 3, 18 Fed. Reg. 2489 (Apr. 27, 1953), reprinted as amended in 5 U.S.C.
5 7311 (2000). While the scope of the investigation depends on the relation of the employment to
national security, “in no event shall the investigation include less than a national agency check
(including a check of the fingerprint tiles of the Federal Bureau of Investigation), and written
inquiries to appropriate local law enforcement agencies.” Id.; see also 5 U.S.C. 5 9101 (2000)
(giving OPM a right to criminal history information of state and local criminal justice agencies to
determine whether a person may be eligible for access to classified information, be assigned to
sensitive national security duties, or continue to be assigned to sensitive national security duties).

        OPM is an agency authorized by federal statute and executive order to receive criminal
history record information, and it is therefore within section 411.083(b)(2). Accordingly, a Bell
County criminal justice agency may release to OPM criminal history record information that is
subject to a nondisclosure order issued under section 411.081(d).

         You also ask how the custodian of records should respond to an inquiry for criminal history
information found in documents subject to a nondisclosure order, that is, whether section 411.081
permits a law enforcement agency to state that it has “no disclosable record” to a person not
authorized to receive the information, instead of stating that it has “no record.” Request Letter,
The Honorable Richard .I. Miller - Page 4            (GA-0255)




supra note 1, at 1. The Public Information Act provides in Government Code section 552.142 that
the person who is the subject of the nondisclosure order “may deny the occurrence of the arrest and
prosecution to which the information relates and the exception of the information under this section,
unless the information is being used against the person in a subsequent criminal proceeding.” TEX.
GOV’T CODEANN. 5 552.142(b) (Vernon Supp. 2004-05).

        No analogous provision addresses a law enforcement agency’s response when a member of
the public requests access to a record subject to a section 411.08 1(d) nondisclosure order. However,
it would be consistent with the purpose of section 411.081(d) for the law enforcement agency
personnel to say that the agency has “no record” in response to the inquiry. The law enforcement
agency should also consult the court order for any guidance it may give.
The Honorable Richard J. Miller    - Page 5         (GA-0255)




                                       SUMMARY

                       Government Code section 411.08 1(d) provides for an order
              prohibiting   criminal justice agencies from publicly disclosing
              criminal history record information related to the offense giving rise
              to a deferred adjudication, subject to statutory exceptions. Although
              an individual whose information is subject to the nondisclosure
              order does not have statutory authority to waive the order,
              information subject to the order may be disclosed to certain entities,
              including a non-criminal justice agency authorized by federal statute
              or executive order or by state statute to receive criminal history
              record information, such as the United States Office of Personnel
              Management.

                       If a law enforcement agency receives a request for information
               subject to a section 411.081(d) nondisclosure order from a person
               who is not authorized to receive the information, the agency may
               inform the person that it has “no record.”

                                              Very .puly yours,




                                              AttowGeneral        of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
