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John Cornyn
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April 27, 2000

Mr. Lance Vanzant
Hayes, Coffey & Berry
1710 Westminster
Denton, Texas 76206

OR2000-1656

Dear Mr. Vanzant:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134552.

The City of Pilot Point (the "city") received a request for information related to internet usage by city library patrons. The requestor later clarified his first request. The city subsequently received a second request for additional library information. We will consider the two requests separately in this ruling.(1)

The first request for information reads as follows:

A list of all words, phrases, internet site addresses, or other character strings which have ever been manually entered by any individual into the Pilot Point community library computer, which would in any way restrict internet access by any library patron. This request includes any data as described above which has been subsequently removed.

You have interpreted the request as seeking "a list of words or phrases that are manually entered by an individual Internet user into the library's computer terminal." However, by letter to this office dated March 8, 2000, the requestor indicates that he "wants only the words, phrases, site addresses or character strings manually entered by the Pilot Point Library Director or anyone under her direction, which would restrict internet access by library patrons. I do not want the words, phrases, etc. used by the software manufacturer to restrict access." See Gov't Code 552.304 (permitting a person to submit comments to this office as to why the information at issue should or should not be released). Based upon the information Net Nanny provided us, it is our understanding that the city library uses software developed by "Net Nanny Software, Inc." ("Net Nanny") to restrict patrons' access to certain areas of the Internet. If the Library Director or anyone under her direction enters certain words, phrases, or character strings in order to activate and/or deactivate the software, we believe such information is responsive to the first request.

It is also possible that the methodology used by the Library Director or at her direction to implement the software involves information contained in the Net Nanny software itself. Although the requestor states to this office that he does not want the words, phrases, etc. used by Net Nanny, we are informed by letter you have provided us from Net Nanny to the city library, that the software contains a database of Internet site addresses which any person authorized to control the program can modify. Thus, the information in the database does not necessarily consist of information "used by the software manufacturer to restrict access." Therefore, the information in the database may be responsive to the first request. Accordingly, we address the submitted arguments against the release of this information.

Initially, you inform us that the information that is responsive to the first request is "automatically deleted from the Internet software on a periodic basis and for that reason does not exist." We note that a governmental body is not required to obtain information not in its possession. Open Records Decision No. 558 (1990). However, you later indicate that "there is a possibility that . . . Net Nanny . . . could retrieve a portion of this information for a substantial fee." We assume that the information to which you refer is contained in a library computer so that the city owns the information or has a right of access to it. See Gov't Code 552.002. Neither the cost nor the method of supplying requested information may be considered in replying to a request for public information. Open Records Decision No. 465 (1987). Further, some compilation and manipulation of information stored in an electronic medium is required under the Texas Public Information Act. See Gov't Code 552.231. We therefore conclude that, to the extent the information can be retrieved, the city must comply with the request for information.(2)

As to the information which may be manually entered to activate or deactivate the software, as well as responsive information which can be retrieved from the database, the city asserts it would be excepted from disclosure under section 552.101 of the Government Code. This section excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." However, you did not specifically identify a constitutional provision, statute, or judicial decision which makes the information confidential by law, nor are we aware of any such provision. Accordingly, you have not demonstrated that the responsive information, if any, that is manually entered or that is contained in the software, is excepted from disclosure under section 552.101. Therefore, the information may not be withheld under section 552.101 of the Government Code.

You notified Net Nanny of the city's receipt of the request for information.(3) In correspondence you have provided this office, Net Nanny states that its database is protected by copyright laws. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). However, a governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990). Therefore, the city may not prohibit access to Net Nanny's database information pursuant to copyright laws.(4)

You also contend that the information that is responsive to the first request is excepted from disclosure under section 552.124 of the Government Code. However, since you have not provided any of the responsive information for our review, we cannot determine whether the information is excepted from disclosure. See Gov't Code 552.301(e). Therefore, to the extent the information responsive to the first request exists or can be retrieved, you must release the responsive information to the requestor.

We will now address the information which you have provided which is responsive to the second request. The requestor has asked for copies of sign-up sheets used by the city's library patrons.(5) You assert that this information is excepted from disclosure under section 552.101 of the Government Code. Again, you have not specifically identified a constitutional provision, statute, or judicial decision which makes the information confidential by law, nor are we aware of any such provision. Accordingly, you may not withhold the information from disclosure under section 552.101.

You assert that section 552.124 excepts from disclosure the names of the patrons. Section 552.124 makes confidential, with certain exceptions which are not applicable here, "[a] record of a library or library system, supported in whole or in part by public funds, that identifies or serves to identify a person who requested, obtained, or used a library material or service." We agree that the information you have marked must be withheld from disclosure pursuant to section 552.124 of the Government Code.

In summary, to the extent information that is responsive to the first request exists and can be retrieved, you must make such information available to the requestor. As to any such responsive information that is subject to the copyright law, the city must not furnish copies and the requestor assumes the duty of compliance with the copyright law. You must also release the information that is responsive to the second request, but you must first redact the information you have marked as excepted from disclosure under section 552.124.

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/ljp

Ref: ID# 134552

Encl. Submitted documents

cc: Mr. Drexel Boswell
608 W. Georgia Lane
Pilot Point, Texas 76258
(w/o enclosures)


 

Footnotes

1. The requestor indicates that he additionally requested blank copies of certain forms used by the Pilot Point Community Library. The requestor informs us that the city released three forms to him but that he has not received form # 788743, the "no patron card" form. Since you have not sought a ruling from this office and have, therefore, not asserted any exceptions to the disclosure of these forms, all requested forms must be released to the requestor. See Gov't Code 552.301, .302; see also Open Records Decision No. 664 (2000) (governmental body must promptly, without delay, provide information for which it has not asserted an exception from disclosure).

2. Governmental bodies may, in some instances, charge for the costs of programming or manipulation of data. Gov't Code 552.231. We suggest that you contact the Open Records Administrator for the General Services Commission to resolve any cost issues. See Gov't Code 552.261-.273. The administrator can be reached at (512) 475-2497.

3. We note that where a request for information under the Public Information Act implicates the proprietary interests of a third party, the city must make a good faith effort to provide proper notice to the third party. See Gov't Code 552.305 (providing procedure for notification, and permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Public Information Act in certain circumstances). The third party notice must include a copy of the written request for information and a statement in the form prescribed by this office. Gov't Code 552.305(d)(2)(B). The form can be found in Appendix C of the 2000 Texas Public Information Handbook. The handbook is available online at the Office of the Attorney General's web site at www.oag.state.tx.us. We have no indication that the city has properly complied with section 552.305 in this instance.

4. As indicated above, you have provided for our review a letter from Net Nanny to the city in which Net Nanny asserts that releasing its "master list of tens of thousands of sites that contain pornographic, violent, and hate-related material to the public would unduly jeopardize [Net Nanny's] reputation and position in the marketplace." As it is our understanding that the requestor does not seek the information used by Net Nanny to restrict access, we do not address this assertion.

5. In his March 8, 2000 letter to this office, the requestor indicates that he has not received copies of the library's internet sign-up sheets for the months of November, 1999 and December, 1999. To the extent this information exists, it must be released to the requestor. See Open Records Decision No. 664 (2000).
 

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