Untitled Texas Attorney General Opinion ( 2014 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 10, 2014
The Honorable Randall C. Sims Opinion No. GA-1086
District Attorney
47th Judicial District of Texas Re: Authority of an entity to require and
Potter County Courts Building maintain a photocopy of the credentials of a
501 South Fillmore, Suite SA person covered by section 552.1175 of the
Amarillo, Texas 79101-2449 Government Code (RQ-1199-GA)
Dear Mr. Sims:
You ask two questions regarding the process under the Public Information Act (the "Act")
by which certain law enforcement officials may keep specific personal information about
themselves from being disclosed to the public. 1 As a general rule, the Act makes information in the
possession of a governmental body available to the public. TEX. Gov'T CODE ANN. § 552.021
(West 2012). "Information that relates to the home address, home telephone number, emergency
contact information, date of birth, . . . social security number" or family status of certain law
enforcement officials, 2 however, "is confidential and may not be disclosed to the public" if the
procedure set forth in subsection 552.1175(b) of the Government Code is followed. Id.
§ 552.1175(b) (West Supp. 2014). First, subsection 552.1175(b) requires the law enforcement
official to "choose[] to restrict public access to the information." Id. § 552.1175(b)(1 ). Second,
subsection 552.1175(b) requires the law enforcement official to "notif[y] the governmental body of
the individual's choice on a form provided by the governmental body, accompanied by evidence of
the individual's status." Id. § 552.1175(b)(2). Your questions concern this "evidence of status"
requirement. Request Letter at 1-2.
You tell us that certain governmental entities3 have required police officers making an
election under section 552.1175 to provide evidence of employment status in the form of police
1
Letter from Honorable Randall C. Sims, Dist. Att'y, 47th Jud. Dist., to Honorable Greg Abbott, Tex. Att'y
Gen. at 1 (May 13, 2014), http://www.texasattomeygeneral.gov/opin ("Request Letter").
2
Section 552.1175 applies to persons holding, and in some cases formerly holding, specific law enforcement
positions, such as peace officers, county jailers, security officers, employees of certain criminal or juvenile justice
agencies or offices, and federal and state judges. TEX. Gov'T CODE ANN.§ 552.1175(a) (West Supp. 2014).
3
You refer specifically to a county elections administrator and an appraisal district. Request Letter at I.
Section 552.1175, however, "does not apply to information in the tax appraisal records of an appraisal district to which
(continued ... )
The Honorable Randall C. Sims - Page 2 (GA-1086)
identification cards. !d. at 1. The identification cards, which you explain "include the officers'
photos," are photocopied and placed in the entity's files. !d. You first ask whether a person
covered by section 552 .1175 must "provide a photocopy of their credentials or present their
credentials for photocopying . . . when requesting that the covered information be kept
confidential." !d. at 2.
The plain language of section 552.1175 does not require governmental entities to photocopy
the evidence of employment status that is presented in connection with a privacy election. See TEx.
Gov'T CoDE ANN.§ 552.1175 (West Supp. 2014). On the other hand, you have not identified, and
we have not found, any source of law that would prohibit such photocopying. Thus, whether to
photocopy the evidence of status is likely a decision that may be made by the governmental entity
collecting the evidence. Any copies of identification cards collected in this manner are themselves
subject to subsection 552.139(b)(3) of the Act, which makes confidential "a photocopy or other
copy of an identification badge issued to an official or employee of a governmental body." !d.
§ 552.139(b)(3) (West 2012).
Your second question is whether "an entity covered by Section 552.1175 [of the]
Government Code [is] allowed to maintain a copy of a person' s credentials, whether paper or
electronic, of a person who has requested that the covered information be kept confidential."
Request Letter at 2. Documents created by or collected by a governmental body in connection with
an election under section 552.1175 are public records under the Act. See TEX. Gov'T CODE ANN.
§ 552.002(a)(l) (West Supp. 2014) (defining "public information" as "information that is written,
produced, collected, assembled, or maintained under a law ... by a governmental body"); see also
id. § 552.002(c) (specifying that public information can exist in both paper and electronic form). A
governmental entity is authorized, indeed required, to maintain4 public information if it chooses to
create or collect it. See id. § 552.351(a) (West 2012) (criminalizing the willful destruction or
removal of public information). The evidence about which you ask, however, will likely be subject
to an exception from public disclosure under the Act. For example, as explained above, "a
photocopy or other copy of an identification badge issued to an official or employee of a
governmental body" is confidential under subsection 552.139(b)(3) and may not be released. !d.
§ 552.139(b)(3); see also id. § 552.119 (generally exc pting from public disclosure a photograph of
a peace officer as defined by article 2.12 of the C de of Criminal Procedure, the release of which
Section 25.025, Tax Code, applies." TEX. Gov'T' COD =ANN. § 552.1175(d) (West upp. 2014); see also TEX. TAX
CODE ANN . § 25.025(b) (West SLtpp. 2014) (making inf01m ation in appraisal records thar identifies the home address of
certain persons confid ent ial and not subject to publi c disc losure if the person chooses to restrict access through a form
prescribed for that purpose)" id. § 25.025(a) (li sting the persons to whom section 25.025 applies).
4
Records of state and local agencies must be maintained in accordance with the applicable record retention
schedule as administered by the Texas State Library and Archives Commission. See generally TEX. Gov'T CODE ANN.
§§ 441.151-.168 (West 201 2) (govern ing preservation and management of local government records); 441.180-.205
(governing preservation and management of state govern ment records); 13 TEX. ADMIN. CODE§§ 6.1-.10 (2014) (Tex.
State Library & Archives Corn m' n, Records Retention Scheduling) (applicable to state records), 7.121 -. 125 (Records
Retention Schedules) (applicable to local records).
The Honorable Randall C. Sims - Page 3 (GA-1086)
would endanger the life or physical safety of the officer). Because the Act makes such information
confidential, no governmental body may release it, regardless of the reasons it was created or
collected.
The Honorable Randall C. Sims - Page 4 (GA-1086)
SUMMARY
Subsection 552.1175(b) of the Government Code neither
requires nor prohibits a governmental entity from photocopying the
evidence that verifies a person's employment status as a current or
former law enforcement individual under subsection 552.1175(a).
No source of law prohibits a governmental body that chooses
to photocopy the evidence of an individual's status submitted
pursuant to section 552.1175 from retaining the copies. Such
materials are likely subject to exceptions from public disclosure under
the Public Information Act. Subsection 552.139(b)(3) of the
Government Code provides that "a photocopy or other copy of an
identification badge issued to an official or employee of a
governmental body" is confidential and may not be released.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Becky P. Casares
Assistant Attorney General, Opinion Committee