Click for home page
Office of the ATTORNEY GENERAL
GREG ABBOTT
image
 

December 11, 2002

Ms. Joey Longley
Director
Sunset Advisory Commission
P.O. Box 13066
Austin, Texas 78711-3066

OR2002-7040

Dear Ms. Longley:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 172685.

The Sunset Advisory Commission (the "commission") received a request for information used in preparing the Sunset Commission Staff Report on the Texas Lottery Commission. You indicate that the commission has released some of the requested information to the requestor. You claim, however, that other responsive information is excepted from disclosure under sections 552.106, 552.111, and 552.116 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also considered the comments submitted by the Texas Lottery Commission. See Gov't Code 552.304.

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 [required public disclosure]. If information in an audit working paper is also maintained in another record, that other record is not excepted from [required 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.

A governmental body that invokes section 552.116 must demonstrate that the audit working papers are from an audit authorized or required by statute by identifying the applicable statute. The commission operates under chapter 325 of the Government Code. You explain that one of the commission's principal duties is to conduct performance evaluations and produce reports to the legislature on state entities scheduled for abolition. See Gov't Code 325.008 et seq. After reviewing your arguments and the submitted information, we find that the submitted documents comprise audit working papers for purposes of section 552.116 of the Government Code. Thus, the commission may withhold the submitted information under section 552.116. As we are able to make this determination, we need not address your remaining arguments against disclosure.

You ask this office to issue a previous determination authorizing the commission to withhold similar information in similar cases in the future. We decline to issue a previous determination at this time allowing the commission to withhold the general category of information requested in this case in the future. See Open Records Decision No. 673 (2001).

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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

Karen A. Eckerle
Assistant Attorney General
Open Records Division
KAE/sdk
Ref: ID# 172685
Enc: Submitted documents

c: Mr. Stephen Fenoglio
Attorney and Counselor at Law
3660 Stone Ridge Road, Suite B-102
Austin, Texas 78746-7759
(w/o enclosures)

Mr. Gary Grief
Acting Executive Director
Texas Lottery Commission
P.O. Box 16630
Austin, Texas 78761-6630
(w/o enclosures)


 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer


Home | ORLs