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April 6, 2000

Ms. Ruth H. Soucy
Manager, Open Records Division
Comptroller of Public Accounts
P.O. Box 13528
Austin, Texas 78711-3528

OR2000-1324

Dear Ms. Soucy:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133754.

The Comptroller of Public Accounts (the "comptroller") received a request for copies of any customs or other information which led to or relates to the December 8, 1999 letter from Florentino Barraza to a specified taxpayer. You have already provided the requestor with some of the documents. You claim that the remaining information is excepted from disclosure under sections 552.101, 552.108, 552.111, and 552.116 of the Government Code. We have considered the exceptions you claim and reviewed the representative sample of documents.(1)

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 statute. You assert that customs information provided to the comptroller by the United States Customs Service is confidential pursuant to federal law. You point to section 628 of the Tariff Act which allows the Secretary of the Treasury (the "Secretary") to issue regulations concerning the exchange of customs information between governmental entities. 19 U.S.C. 1628(a). The act provides the following:

(b) Information may be provided to foreign customs and law enforcement agencies under subsection (a) of this section only if the Secretary obtains assurances from such agencies that such information will be held in confidence and used only for the law enforcement purposes for which such information is provided to such agencies by the Secretary.

19 U.S.C. 1628(b). After reviewing section 628 of the Tariff Act, we conclude that section 628 does not make confidential information held by the comptroller, but merely gives the Secretary the authority to demand assurances from agencies such as the comptroller, before transferring the customs information held by the Secretary.

The comptroller has also provided this office with a copy of a Memorandum of Understanding ("memorandum") between the United States Customs Service (the "service") and the State of Texas, as well as a Uniform Exchange of Information Agreement ("agreement").(2) Assuming arguendo that the memorandum purports to make confidential the information submitted for our review that was obtained from the service, we note that a governmental body cannot contractually agree to maintain the confidentiality of public information absent express legislative authority.(3) See Attorney General Opnion JM-672 (1987), Open Records Decision No. 232 (1979); Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). As to the agreement, its language specifically provides that the information obtained from the Secretary is governed by "applicable statutory provisions of the State of each signatory agency." Assuming that the comptroller is a signatory agency to the agreement, you inform us of no Texas statute which would operate to make confidential the specific information submitted for our review that was obtained from the Secretary. We thus conclude that this information is not excepted from disclosure as "information considered to be confidential by statutory law."

You also assert some of the information implicates the common law privacy interests of individuals other than the requestor. Section 552.101 of the Government Code also protects information protected by the common law right of privacy. Industrial Found., 540 S.W.2d at 683-85. The doctrine of common law privacy protects information that contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and the information must be of no legitimate concern to the public. Id. You assert that portions of the submitted information contain personal financial information protected under common law privacy. Although you claim that you have marked the financial information which implicates common law privacy, we are unable to determine which information you claim is protected by common law privacy. Gov't Code 552.301(e)(2) (governmental body must label copy of information to indicate which exceptions apply to which parts of the copy). Furthermore, upon review, we do not believe that the information implicates the common law privacy rights of individuals. You may not withhold the information under common law privacy.

You also assert that the requested information is protected by section 552.108 of the Government Code. Section 552.108(a)(1) provides that information held by a law enforcement agency that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure if release of the information would interfere with the detection, investigation, or prosecution of crime. The comptroller is a law enforcement agency for purposes of administering the Tax Code. A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 678-679 (Tex. 1995). In A&T Consultants, the court agreed that the comptroller uses audits to further the comptroller's law enforcement objectives.

Generally, a governmental body claiming an exception under section 552.108 must reasonably explain, if the information does not supply the explanation on its face, how and why the release of the requested information would interfere with law enforcement. See Gov't Code 552.108(a), (b), .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You explain that some of the requested information, which you have marked, pertains to an ongoing tax examination into the sales and use tax liability of the specified taxpayer, as well as that of other taxpayers. Based on these representations, we conclude that you may withhold portions of the requested information under section 552.108(a)(1) as release of the information "would interfere with the detection, investigation, or prosecution of crime." We have marked the information which you may withhold under section 552.108(a)(1).

You also assert that portions of the submitted information are protected under section 552.116. Section 552.116 of the Government Code, as amended by the Seventy-sixth Legislature, provides in relevant part:

(a) An audit working paper of an audit of the state auditor or the auditor of a state agency or institution of higher education as defined by Section 61.003, Education Code, is excepted from [required public disclosure]. If information in an audit working paper is also maintained in another record, that other record is not excepted from [required public disclosure] by this section.

(b) In this section:

(1) "Audit" means an audit authorized or required by a statute of this state or the United States and includes an investigation.

(2) "Audit working paper" includes all information, documentary or otherwise, prepared or maintained in conducting an audit or preparing an audit report, including:

(A) intra-agency and interagency communications; and

(B) drafts of the audit report or portions of those drafts.

Gov't Code 552.116. You further assert that the comptroller may rely on section 552.116 to withhold from disclosure the reasons for ongoing audits or examinations of taxpayers. See A&T Consultants, 904 S.W.2d at 678-679. After reviewing the customs information, we conclude that you have not demonstrated that the customs information amounts to an "audit working paper." Furthermore, the information does not disclose the reasons for ongoing audits or examinations of taxpayers. Therefore, you may not withhold the customs information under section 552.116.

You have also submitted a representative sample of a draft document which you assert is protected by section 552.111.(4) Section 552.111 excepts "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.-Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. This exception does not except from disclosure purely factual information that is severable from the opinion portions of the communication. See id.

Furthermore, in Open Records Decision No. 559 (1990), this office concluded that a preliminary draft of a document that is intended for public release in final form necessarily represents the advice, opinion, and recommendation of the drafter as to the form and content of the final document and as such could be withheld pursuant to the statutory predecessor to section 552.111. Thus, section 552.111 also excepts draft documents to the extent that the draft documents pertain to the policymaking function of the governmental body. Having reviewed the submitted document, we conclude that the document does not reflect the policymaking processes of the comptroller. The sample draft is merely correspondence in which the comptroller requests information, and you have not explained how this information relates to policymaking. Thus, the document may not be withheld under section 552.111 of the Government Code.

In conclusion, we have marked the information that you may withhold under section 552.108(a)(1). You must release the remaining information.

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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/ch

Ref: ID# 133754

Encl. Marked documents

cc: Mr. Jack Taylor, III
Fulbright & Jaworski
1301 McKinney, Suite 1500
Houston, Texas 77010-3095
(w/o enclosures)


 

Footnotes

1. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). 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 than that submitted to this office.

2. Neither the comptroller, nor any agency of the state of Texas, appears to have entered into this agreement.

3. Attachment I of the memorandum indicates that the comptroller obtains the information from the Secretary pursuant to section 151.027 of the Tax Code. See Tax Code 151.027(c)(1). While section 151.027(a) contains a confidentiality provision, you do not assert, nor do we believe based on the information you have provided this office, that the information from the Secretary and submitted for our review is made confidential by this provision. See also Open Records Decision No. 624 (1994).

4. In your brief, you assert that the comptroller has not yet completed its review of the responsive information but that responsive information contains "advice, opinion, or recommendation of staff members concerning the application of tax provisions, as well as internal communications."
 

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