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John Cornyn
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August 12, 1999

Mr. Thomas G. Ricks
President
The University of Texas Investment Management Company
210 West Sixth Street, Second Floor
Austin, Texas 78701

OR99-2309

Dear Mr. Ricks:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 126461.

The University of Texas Investment Management Company ("UTIMCO") received a request for the "cookie files" of certain UTIMCO agents and employees. You relate that you have no right of access to the files of your agents, but have supplied to this office for review a representative sample of the responsive information in your control. You contend that the requested files are not "public information" subject to the disclosure requirements of chapter 552 of the Government Code.(1) You also contend that the request for information was not properly submitted and therefore need not be responded to. You argue in the alternative that this information is excepted from disclosure by sections 552.101 and 552.117 of the Government Code. We have considered your contentions and have reviewed the submitted information.

You relate that you do not possess or have a right of access to the subject files of your agents. A governmental body is not required to obtain information not in its possession. Open Records Decision No. 558 (1990). ). Based on your representation, we conclude that the records of your agents are not subject to this request. We also assume that the "representative sample" of records that you have submitted to this office is truly representative of the responsive records as a whole. This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information from that submitted to this office. See Open Records Decision Nos. 499 (1988).

We now address your contention that the subject request was improperly submitted and therefore is not a "valid request for information." A statutory ten business day response period begins on the day that a governmental body receives a written request for information; "a written request includes a request made in writing that is sent to the officer for public information, or the person designated by that officer, by electronic mail or facsimile transmission." Gov't Code 552.201(a). The chief administrative officer of a governmental body is the officer for public information [with exceptions that do not apply here]. Gov't Code 552.201(a). You acknowledge that the request was sent to the chief administrative officer. You contend that because this officer has designated another individual as his agent for receipt of information requests, and has informed the requestor of this designation, requests made directly to the officer are not "proper." We note that the language of the statute that permits an officer for public information to make such a designation is inclusive rather than exclusive; the request may be made "to the officer for public information, or the person designated by that officer." Gov't Code 552.201(a). We also note that, while it may evidence bad faith on the part of a requestor to create needless administrative difficulties by routing requests in this manner, the motives of a requestor may not be considered in responding to a request made under the Public Information Act. See Gov't Code 552.222(b). We conclude that, as the subject request was made to the chief administrative officer of a governmental body, the requirements of chapter 552 of the Government Code apply.

We next address your contention that "cookie files" are not subject to chapter 552 of the Government Code. Section 552.002 of the Government Code provides the relevant definition. In pertinent part, it reads:

"Public information" means information that is collected, assembled or maintained under a law or ordinance or in connection with the transaction of official business:

(1) by a governmental body

The subject information is maintained on UTIMCO computers. As these files exist on UTIMCO computers, used by UTIMCO employees, and consists of information about the use of the Internet by UTIMCO employees, we conclude that this information is subject to the Public Information Act.

You contend that the files are excepted from disclosure following the reasoning of previous determinations of this office which have excepted information considered to be the "personal notes," of the employees of governmental bodies. See, e.g., Open Records Decision Nos. 116 (1975) and 145 (1976). In making such a determination, this office has considered the following factors: (1) use of state resources to maintain the information; (2) possession or access to the information by individuals other than the putative "owner"; (3) content of information in the document that is related to the governmental body's function; and (4) use of the information in the document in connection with the official business of the governmental body. Open Records Decision No. 635 (1995). You acknowledge that the subject files are not personal notes of UTIMCO employees, but are "analogous to such notes in that they reflect personal facts" about the employees. You make no claim that the files are the personal property of employees. Nor do you claim that access to the files is limited to specific individual employees. We also note that in instances where the computers are used to access web sites for UTIMCO, rather than for personal purposes, information may be stored in these files that would be related to or used in the transaction of the official business of UTIMCO. Accordingly, we conclude that these files are not excepted from disclosure as "personal notes" of UTIMCO employees.

You contend that the files are excepted from disclosure by sections 552.101 and 552.117 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." You raise this section in conjunction with the common law right of privacy and federal statutes pertaining to the confidentiality of social security numbers. Section 552.117 excepts information relating to employee home addresses, telephone numbers, social security numbers and family members, where the employee has elected under section 552.024 of the Government Code to keep this information confidential. You acknowledge that the subject files do not reveal any protected information "outright," or "explicitly," but contend that the information could be obtained from these files by "a knowledgeable computer user." You do not indicate any specific portion of the submitted materials that you contend contains protected information. We therefore disagree with your conclusion that release of the files is "tantamount" to or "virtually the same" as release of such information. We conclude that you have not demonstrated that the files are excepted from disclosure under section 552.101 or 552.117 of the Government Code.

As the files have been found to be subject to the Public Information Act, and no exception from the disclosure requirements of that Act have been demonstrated, the information must be released to this requestor. 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# 126461

Encl. Submitted documents

cc: Mr. Stephen N. Lisson
Initiate!!
P.O. Box 2013
Austin, Texas 78768
(w/o enclosures)


 

Footnotes

1. We note that this office has previously determined that UTIMCO is a "governmental body" for purposes of the Public Information Act. Open Records Letter OR 97-1776 (1997). We do not revisit this issue in this opinion.
 

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