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John Cornyn
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December 28, 2000

Ms. Victoria Hsu
Executive Director
Texas Board of Professional Engineers
1917 IH-35 South
Austin, Texas 78741

OR2000-4855

Dear Ms. Hsu:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 142714.

The Texas Board of Professional Engineers (the "board") received a written request for a "letter of complaint" filed with the board by a named individual concerning the 1999 Texas A&M Bonfire. You have submitted to this office two responsive documents, which you contend are made confidential under article 3271a, V.T.C.S. and therefore must be withheld from the public pursuant to section 552.101 of the Government Code.

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 22A of article 3271a, the "Texas Engineering Practice Act" (the "act"), provides as follows:

(a) The Board shall keep an information file about each complaint filed with the Board relating to a license holder.

(b) If a written complaint is filed with the Board relating to a license holder, the Board, at least as frequently as quarterly, shall notify the parties to the complaint of the status of the complaint until final disposition unless the notification would jeopardize an undercover investigation.

(c) The Board shall adopt rules that permit the Board to receive and investigate confidential complaints against license holders or any other person who may have violated this Act. The Board shall maintain the confidentiality of the complaint during the investigation of the complaint. [Emphasis added.]

We have reviewed the complaints you submitted to this office as being responsive to the request. The two complaints are virtually identical except that one complaint identifies a license holder by name, while the other complaint does not. Assuming the board's investigation of the 1999 Bonfire is currently pending, we conclude that the complaint that identifies a license holder is made confidential under section 22A of article 3271a.

On the other hand, the other complaint does not identify any "license holders or any other person" as having allegedly violated a provision of the act; rather, the complaint was lodged generally against "Texas A&M University" (the "university"). The act does not contemplate that a governmental body such as the university may be a "license holder" or other person for purposes of the act. See V.T.C.S. art. 3271a, 16, 17 (listing "sole proprietorship," "firm," "partnership," "co-partnership," "association," "corporation," "joint stock association" and "other business entity," as being authorized to be licensed). Because this complaint does not identify any "license holders or any other person" as having violated the act, we conclude that the confidentiality provision found in section 22A(c) is inapplicable in this instance. Because you have not raised any other exception to required public disclosure, we conclude that the board must release in its entirety the complaint that does not identify a license holder.

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 Hadassah Schloss at 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,

Stephen P. Agan
Assistant Attorney General
Open Records Division

SPA/RWP/seg

Ref: ID# 142714

Encl. Submitted documents

cc: Mr. John Williams
Houston Chronicle
801 Texas
Houston, Texas 77002
(w/o enclosures)


 

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