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April 14, 2000

Mr. Delmar L. Cain
General Counsel
The Texas A & M University System
301 Tarrow, 6th Floor
College Station, Texas 77840-7896

OR2000-1497

Dear Mr. Cain:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 13352.

Texas A & M University at Commerce (the "university") received a written request for certain categories of information pertaining to the proposed sale of university land to Wal-Mart. You state that some of the requested information has been released to the requestor. You seek to withhold, however, the following categories of information:

  • Copies of all correspondence between you, your office or your representatives and Wal-Mart regarding this matter.
  • A copy of the appraisal on the property being offered for sale.
  • A copy of the contract on the property being offered for sale.

You contend that these categories of information, copies of which you have submitted to this office for review, are excepted from required public disclosure pursuant to section 552.105(2) of the Government Code.(1)

Section 552.105(2) of the Government Code excepts from required public disclosure "information relating to . . . appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property." Section 552.105 protects information, the release of which would impair or tend to impair the governmental body's "planning and negotiating position in regard to particular transactions." Open Records Decision No. 222 (1979). Whether particular information falls under the protection of section 552.105 is a question of fact, and the attorney general will accept a governmental body's good faith determination that release of certain information would damage its future negotiating position, unless the contrary is clearly shown as a matter of law. Open Records Decision No. 564 (1990). Based on your representation that the release of the information at issue would damage the university's current negotiations over the sale of the property, we conclude that the university may withhold the information pursuant to section 552.105(2) until such time that the contract for the purchase is executed.

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,

Carla Gay Dickson
Assistant Attorney General
Open Records Division

CGD/RWP/ch

Ref.: ID#133552

cc: Ms. Gina M. Sullivan
Post Office Box 466
Commerce, Texas 75429
(w/o enclosures)


 

Footnotes

1. The university also received from the same requestor, in separate correspondence, certain inquiries regarding the proposed sale. We agree that the Public Information Act does not require the university to answer factual questions. See Open Records Decision No. 347 (1982). The act applies only to information already transcribed into tangible form.
 

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