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June 7, 2000

Mr. Homero G. Martinez
Assistant City Attorney
City Of Laredo
P. O. Box 579
Laredo, Texas 78042-0579

OR2000-2213

Dear Mr. Martinez:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136993.

The City of Laredo (the "city") received a request for a list of any salary adjustments, re-assignments, lateral transfers, promotions, transfers, and retroactive pay that have been granted to city employees from December 6, 1999 to the present including the department/division name, employee's name, the current hourly rate, the previous hourly rate and the personnel action form or document in which the salary increases were requested. You claim 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 submitted representative samples of information.(1)

Pursuant to section 552.301(e)(1), a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code 552.301(e)(1)(A)-(D). The city received the request on April 21, 2000 and, therefore, had until May 12, 2000 to submit a copy of the requested information or representative samples. Because the representative samples were post-marked May 18, 2000, you failed to submit the requested information within the fifteen business day period mandated by section 552.301(e).

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301(e) results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code 552.302; 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 assert that the requested information is excepted from required disclosure pursuant to section 552.103 of the Government Code. Section 552.103 does not provide a compelling reason sufficient to overcome the presumption that the information is public. See Open Records Decision No. 551 (1990) (statutory predecessor to section 552.103 serves only to protect a governmental body's position in litigation, and does not itself make information confidential). Thus, we conclude that you have not provided a compelling reason which would overcome the presumption that the information is public. Therefore, you must release the information to the requestor.

However, we note that the submitted information contains social security numbers of city employees. Section 552.117(1) excepts from disclosure information that relates to the home addresses, home telephone numbers, social security numbers and family member information of employees of a governmental body who request that this information remain confidential under section 552.024. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for the information is made. See Open Records Decision No. 530 at 5 (1989). Therefore, if the employees have elected for confidentiality of social security numbers under section 552.024 prior to the date on which the request for this information was made, the city must withhold the employees' social security numbers under section 552.117(1).

Section 552.117(2) excepts from public disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members regardless of whether the peace officer complied with section 552.024 of the Government Code. Thus, you must withhold the social security numbers of peace officers under section 552.117(2) of the Government Code.

With the exception of social security numbers, you must release the requested 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/pr

Ref: ID# 136993

Encl. Submitted documents

cc: Mr. J. L. Martinez
4712 Maher
Laredo, Texas 78041
(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.
 

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