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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 17, 2002

Mr. Matthew C. G. Boyle
Boyle & Lowry, L. L .P.
4201 Wingren, Suite 108
Irving, Texas 75062-2763

OR2002-7173

Dear Mr. Boyle:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173811.

The City of Grapevine (the "city"), which you represent, received a request for copies of a variety of information pertaining to a specified project. You state that the city has provided the requestor with some responsive information. You claim, however, that the remaining requested information is excepted from disclosure pursuant to sections 552.104 and 552.110 of the Government Code. You also state that pursuant to section 552.305(d) of the Government Code the city notified an interested third party, Omega Contracting, Inc. ("Omega"), of the city's receipt of the request and of Omega's right to submit arguments to this office as to why the remaining requested information relating to Omega should not be released to the requestor. See Gov't Code 552.305(d); see also 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 to disclosure under Public Information Act (the "Act") in certain circumstances). We have considered all arguments regarding the claimed exceptions to disclosure.

We note that section 552.301(e) of the Government Code requires that a governmental body that requests an attorney general decision under section 552.301(a) must, within a reasonable time, but not later than the fifteenth business day after the date of receiving the written request, submit to the attorney general, among other items, a copy of the specific information requested or representative samples of the information if a voluminous amount of information was requested and label that copy of the specific information, or of the representative samples, to indicate which exceptions apply to which parts of the copy. See Gov't Code 552.301(e). To date, the city has not submitted any portion of the requested information to us for our review. Therefore, we find that the city failed to request a decision from our office in accordance with section 552.301 of the Government Code.

Because the city failed to comply with the procedural requirements of section 552.301, the information at issue is now presumed public. See Gov't Code 552.302; see also Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The city must demonstrate a compelling interest in order to overcome the presumption that the requested information is now public. See id. Normally, a compelling interest is demonstrated when some other source of law makes the requested information confidential or when third party interests are at stake. See Open Records Decision No. 150 at 2 (1977). Although the city claims that the remaining requested information is excepted from disclosure pursuant to section 552.104 of the Government Code, we note that section 552.104 is a discretionary exception to disclosure under the Act that does not constitute a compelling interest that is sufficient to overcome the presumption that the remaining requested information is now public.(1) See Open Records Decision No. 592 (1991) (governmental body may waive section 552.104). Furthermore, because the city did not submit a copy of the remaining requested information to us for our review, we have no basis for concluding that any portion of it is excepted from disclosure under section 552.110(b) of the Government Code. Accordingly, we conclude that the city must release the remaining requested information to the requestor in its entirety.

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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division
RJB/lmt
Ref: ID# 173811

c: Ms. Donna Garrett
2804 Creekwood
Grapevine, Texas 76051

Mr. Michael F. Albers
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202


 

Footnotes

1. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 551 (1990) (statutory predecessor to section 552.103 serves only to protect governmental body's position in litigation and does not itself make information confidential), 473 (1987) (governmental body may waive section 552.111), 522 at 4 (1989) (discretionary exceptions in general). Discretionary exceptions, therefore, do not constitute "other law" that makes information confidential.
 

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