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March 30, 2000

Ms. Susan C. Rocha
City Attorney
Denton, McKamie & Navarro
310 South St. Mary's Street
San Antonio, Texas 78205-3111

OR2000-1245

Dear Ms. Rocha:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135242.

The City of Pleasanton (the "city"), which you represent, received a request for information, as follows:

1. Copy of the minutes of June 7 and June 21, 1999. (certified)

2. A copy of the certified agenda of the executive session of June 7, 1999.

3. If a certified agenda is not available, an assurance that there is a tape recording of the June 7, 1999 executive session.

The City Secretary has responded to the requestor, stating "I do not find either a certified copy or tape recording of the Executive Session of the Pleasanton City Council held on June 7, 1999." You also represent to this office that "there is no certified agenda or tape recording of the executive session held on June 7, 1999[.]"(1) You have provided for our review information that is responsive to the above-stated item 1. You do not state whether this information has been released to the requestor.

You assert no exception, nor do you make any arguments, for withholding the information you have submitted for our review. See Gov't Code 552.301(b) (providing that a governmental body must submit to this office a request for a decision and state the exceptions that apply no later than the 10th business day after the date of receiving the request for information); see also Gov't Code 552.301(e)(1)(A) (providing that a governmental body must submit to this office, no later than the 15th business day after receiving the written request, written comments stating the reasons why the stated exceptions would allow the information to be withheld). Pursuant to section 552.302 of the Government Code, a governmental body's failure to submit to this office the information required in section 552.301 results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code 552.302); Open Records Decision No. 319 (1982). You have not shown such a compelling interest to overcome the presumption that the information at issue is public. Accordingly, you must release to the requestor the information submitted for our review, as well as any other information that is responsive to the request at issue.(2)

You also inquire of this office "whether or not the City is required to tape record executive sessions when it involves attorney/client consultation." We note that this question relates to the Texas Open Meetings Act. Gov't Code 551.001 et. seq. This inquiry is thus outside the scope of this office's ruling process under the Public Information Act. We note that subchapter C, chapter 402 of the Government Code authorizes certain listed officials and entities to request a written opinion from this office concerning the official duties of the requesting person or on a question of public interest. The city is not among the listed officials and entities who may request such an opinion. Gov't Code 402.042. This office may not give legal advice or a written opinion to a person other than a person named in subchapter C. Gov't Code 402.045. Accordingly, we do not address your open meetings question.(3)

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/ljp

Ref: ID# 135242

Encl. Submitted documents

cc: Mr. Larry Pippen
619 Val Verde
Pleasanton, Texas 78064
(w/o enclosures)


 

Footnotes

1. You also state in reference to item 2 of the request that "a certified agenda for an executive session meeting is public information only under a court order" pursuant to Government Code 551.104. We do not address this assertion, because we rely on your representation that there exists no information responsive to item 2 of the request.

2. Because you represent that "there is no certified agenda or tape recording of the executive session held on June 7, 1999," we have no indication that any of the information that is responsive to the request is confidential by law. We caution that the release of confidential information constitutes a misdemeanor. See Gov't Code 552.352.

3. You may obtain general assistance by either contacting the Municipal Affairs Section of this office ((512) 475-4683), or by referencing the Open Meetings Handbook, which is available at out website (www.oag.state.tx.us).
 

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