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October 11, 2000

Mr. David Anderson
Chief Counsel
Office of Legal Services
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

OR2000-3938

Dear Mr. Anderson:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 139958.

The Texas Education Agency (the "agency") received a written request for all information pertaining to the agency's investigation of complaints regarding the Ysleta Independent School District (the "district"). The requestor also seeks "any information regarding a trip by Ysleta Board Trustees . . . to speak with the TEA Commissioner." You state that the requested information is held by the agency's Division of Accountability Evaluations in connection with the preparation of a "District Effectiveness and Compliance audit report" of the district pursuant to section 39.076 of the Education Code. You contend that the requested information is excepted from disclosure under section 552.116 of the Government Code.

Section 552.116 of the Government Code provides as follows:

(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 [public disclosure]. If information in an audit working paper is also maintained in another record, that other record is not excepted from [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 contend that the records at issue constitute "audit working papers" that are excepted from disclosure under section 552.116(a) of the Government Code. Based on your representation that the records at issue relate to the agency's audit of the district, we agree that the agency may withhold most of the records before us pursuant to section 552.116.(1)

We note, however, that some of the records at issue consist of agendas of the district's public meetings. The agendas of a governmental body's public meetings are specifically made public by section 551.043 of the Government Code and, therefore, may not be withheld from the public pursuant to section 552.116 of the Government Code. Information specifically made public by statute may not be withheld from the public by any of the Public Information Act's exceptions to public disclosure. See, e.g., Open Records Decision Nos. 544 (1990), 378 (1983), 161 (1977), 146 (1976).

Therefore, the agency must release the public meeting agendas to the requestor. The remaining information at issue may be withheld pursuant to section 552.116 of the Government Code.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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/RWP/ljp

Ref: ID# 139958

Encl. Submitted documents

cc: Ms. Stephanie Sandoval
KTSM-TV
801 North Oregon
El Paso, Texas 79902
(w/o enclosures)


 

Footnotes

1. We reach this conclusion despite the fact that many of the records at issue are also held by the district and thus are not "audit working papers" while held by the district. See Gov't Code 552.116(a).
 

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