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March 23, 2000

Mr. Tony Resendez
Escamilla & Poneck, Inc.
1200 South Texas Building
603 Navarro Street
San Antonio, Texas 78205-1826

OR2000-1143

Dear Mr. Resendez:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133645.

The Harlandale Independent School District (the "district"), which you represent, received a request for a copy of the statement made by the requestor "during the closed session of the regular board meeting on 8 November 1999." You state "the only information responsive to this request is a tape recording of the closed session." You assert that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the information you have submitted.(1)

We note at the outset that, in your correspondence to this office dated February 7, 2000, more than ten business days after the date the district received the request at issue, you also assert section 552.101 of the Government Code. You state that this office "has opined that a failure to request, within ten days, an Attorney General's opinion . . . does not require the governmental entity to respond with a compelling demonstration of why information should not be public; rather, it simply shifts the burden to the governmental entity to produce evidence supporting its claim that an exception applies." We disagree and emphasize that this office has expressed no such opinion. Rather, such was stated by the court of appeals in City of Garland v. Dallas Morning News, 969 S.W.2d 548 (Tex. App. -- Dallas 1998), aff'd, 2000 WL 21029 (Tex. 2000), pet. filed, (Feb. 01, 2000). We note that the Public Information Act has since been amended, effectively overruling this holding. See Gov't Code 552.301(b) (a governmental body must ask for a decision from this office and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request for information); see also Gov't Code 552.302 (a governmental body's failure to comply with the requirements of section 552.301 results in the legal presumption that the requested information is public, unless there is a compelling reason to withhold the information). Thus, you did not properly assert section 552.101. As explained below, we shall nevertheless raise section 552.101 on your behalf.

You also state that "a governmental body is not required to request a decision where reliance on previous determinations have been made regarding the information at issue." We emphasize that a governmental body may withhold information requested under the Public Information Act without seeking a ruling from this office only where this office has issued a previous determination as to the precise information at issue. See Gov't Code 552.301(a).

The Public Information Act prohibits the release of confidential information. Gov't Code 552.352. Because the release of confidential information constitutes a misdemeanor, the attorney general will raise section 552.101 on behalf of a governmental body, although the attorney general will ordinarily not raise an exception that a governmental body has failed to claim. Open Records Decision No. 455 at 3 (1987). 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.

Section 551.104 of the Government Code, a provision of the Open Meetings Act, makes the tape of a properly closed meeting confidential. An audiotape recording of a closed meeting is available for public inspection and copying only under a court order. Gov't Code 551.104; Open Records Decision No. 495 at 4 (1988) (audiotape recordings of closed meetings are confidential unless court rules otherwise).(3) Furthermore, section 551.146 provides that it is a criminal offense to disclose to a member of the public an audiotape recording of a closed meeting. Thus, section 551.146, in conjunction with section 552.101, protects from public disclosure an audiotape recording of a properly closed meeting held under the Open Meetings Act. We agree that the audiotape recording of the district's closed executive session is confidential by law. Accordingly, you must withhold the requested information under section 552.101 as information deemed confidential by law.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/ch

Ref: ID# 133645

cc: Mr. Lawrence S. Watson, II
311 East Villaret Boulevard
San Antonio, Texas 78221
 


Footnotes

1. We note that this office did not review the responsive audiotape recording since it was not submitted, nor does it have authority to do so. Open Records Decision No. 495 at 4 (1988) (Open Meetings Act provisions "remove certified agendas and tapes of executive sessions from review by the attorney general under the Public Information Act"). " "

2. However, records that were discussed in a closed meeting and records created in a closed meeting, other than a certified agenda or tape recording, are not made confidential by chapter 551 of the Government Code. Open Records Decision No. 605 (1992).
 

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