Department of Public Safety Audits:

Is Your Institution Properly Maintaining Criminal History Data?

The Department of Public Safety (“DPS”) conducts audits on occasion of school districts’ maintenance of criminal history record information. Criminal history information is defined as information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions (Tex. Gov’t Code § 411.082).

A school district is one of the few entities entitled to receive criminal history information. But the information is solely for the exclusive use of the district and may be disclosed or used by the district only if, and only to the extent, disclosure is authorized by a statute, rule, or order of a court (Tex. Gov’t Code § 411.084). Moreover, a school district cannot confirm the existence or nonexistence of a criminal history record to any person not authorized to receive the information (Tex. Gov’t Code § 411.084(c)). Once a school district receives criminal history information, a school district may not release the information to any person except: 1) the individual who is the subject of the information; 2) the Texas Education Agency; 3) the State Board of Educator Certification; 4) the chief personnel officer of the transportation company; or  5) by court order (Tex. Gov’t Code § 411.097).

Misusing information obtained from a criminal history record may be a Class B misdemeanor or in some circumstances, a felony of the second degree (Tex. Gov’t Code §411.085). It is important to note that attorneys for the District are not explicitly listed as individuals that may have access to the information; however, depending on the district’s relationship with the attorney, attorneys may be allowed to access the information as long as it is transmitted appropriately and all parties have the appropriate training to review the information.

Criminal History information is not subject to disclosure under the Texas Public Information Act (Tex. Gov’t Code § 411.097(d)(2)). Further, the information must be destroyed on the earlier of the first anniversary of the date the information was originally obtained or the date the information is used for an authorized purpose (Tex. Gov’t Code § 411.097(d)(3)).

In light of the law, and based on information received by school districts from DPS, the following actions are advisable:

  1. Create an internal list of individuals within in the District that can access the information;
  2. Provide training to each of the listed individuals;
  3. Prohibit electronic transmission of the information, unless security measures such as encryption are provided;
  4. Destroy the criminal history records at the earlier time of
    1. The first anniversary of the date the criminal history records were obtained; or
    2. The date the information is used for an authorized purpose.

The most important action to take is to enact safeguards to limit the distribution and use of criminal history information by a school district, and to ensure that the records are guarded due to the sensitive nature of the information.

This article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers about school law topics and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s  institution. For circumstance-specific legal advice, please directly contact a licensed attorney.