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June 10, 1999

Ms. Paula A. Jones
Director of Legal Services
Employees Retirement System of Texas
P.O. Box 13207
Austin, Texas 78711-3207

OR99-1625

Dear Ms. Jones:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 125250.

The Employee's Retirement System of Texas (the "system") received a request for information on March 27, 1999, and submitted a request for opinion from this office regarding that information on April 6, 1999. The system therefore failed to submit its request "not later than the 10th business day after the date of receiving the written request," as required by Government Code section 552.301. The information requested is therefore presumed to be public. Gov't Code 552.302. This legal presumption that the requested information is open to the public may be overcome only by a demonstration of a compelling interest. Hancock v. State Bd. Of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ). A demonstration that the requested information is deemed confidential by law is a compelling interest sufficient to negate this presumption. See Open Records Decision No. 150 (1977).

The requestor seeks, "the date that each senior and former judge who is available to serve on assignment became vested in their retirement plan and the last day they held elected public office," for judges identified by the requestor. You relate that "[the system] does not maintain information identifying the date each judge became vested," and "[the system] does not maintain information regarding the last day each judge held elected public office." We understand your position to be that you do not maintain the requested information, but can retrieve information that indicates the amount of accumulated service of each judge. You state that such information "may relate" to the request. You contend that information of this type is excepted from public disclosure by Government Code section 552.101 in conjunction with Government Code sections 803.402, 815.503 and 840.402, and by section 552.024 of the Government Code. You have supplied documents to our office for review, which include the subject information.

The supplied documents also include judges' social security numbers, account types and last contribution dates. As these items of information were not requested, they need not be disclosed. Further, it is well established that the Act does not require a governmental body to obtain information not in its possession or to prepare new information in response to an open records request. Open Records Decision No. 445 (1986). If you do not possess or have a right of access to the information, the Act does not impose a duty on you to obtain the responsive information. However, a governmental body must make a good faith effort to relate a request to information held by it. Open Records Decision No. 561 at 8 (1990). If the system can obtain the responsive information by retrieving data in its possession, the information is subject to disclosure under the Public Information Act.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. The Judicial Retirement System of Texas Plan One, and the Judicial Retirement System of Texas Plan Two are judicial retirement programs administered by the system. See Tex. Gov't Code Ann. 835.001, 840.001. The pertinent programs are administered as retirement plans entirely within the administrative framework of the system. See Tex. Gov't Code Ann. 835.001, 840.001. The records of these plans are subject to Government Code section 815.503, which reads as follows:

    Records of members and beneficiaries under retirement plans administered by the retirement system that are in the custody of the system are considered to be personnel records and are required to be treated as confidential information under Section 552.101.

You relate that the subject information is derived from Judicial Retirement System of Texas Plan One, and Judicial Retirement System of Texas Plan Two records. Such information is confidential and must be withheld under section 552.101 of the Government Code.

Because the above discussion is determinative, we shall not address the exceptions raised under other provisions of the Public Information Act. We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/ch

Ref: ID# 125250

Encl. Submitted documents

cc: Mr. Mark Murray
Abraham, Watkins, Nichols, Sorrels, Matthews & Friend
800 Commerce Street
Houston, Texas 77002-1776
(w/o enclosures)


 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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