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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 17, 2002

Mr. Kuruvilla Oommen
Assistant City Attorney
City of Houston - Legal Department
P.O. Box 1562
Houston, Texas 77251-1562

OR2002-7226

Dear Mr. Oommen:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173974.

The City of Houston (the "city") received a request for the name, title, home address, and work location of all city employees. You claim that a portion of the requested information is excepted from disclosure under section 552.101 of the Government Code. Because you only seek to withhold a portion of the requested information, we assume you have released the remainder. If not, you must do so immediately. See Gov't Code 552.006, .301, .302; Open Records Decision No. 664 (2000) (concluding that section 552.221(a) requires that information not excepted from disclosure must be released as soon as possible under the circumstances). We have considered the exception you claim and reviewed the submitted information.

Initially, we note that the requested information is subject to section 552.022 of the Government Code. Section 552.022(a)(2) provides that "the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a governmental body" is public, unless expressly confidential under other law. See Gov't Code 552.022(a). With respect to responsive information concerning employees of the city Aviation Department, you claim that the Public Information Act (the "Act") is preempted by federal law. Accordingly, we address your arguments under federal law.

The Aviation and Transportation Security Act (the "ATSA") created the Transportation Security Administration (the "TSA"), a new agency within the Department of Transportation (the "DOT") headed by the Under Secretary of Transportation for Security (the "Under Secretary"). See 49 U.S.C. 114(a), (b)(1) (effective November 19, 2001). The ATSA provides that the responsibility for inspecting persons and property carried by aircraft operators and foreign air carriers is transferred from the Administrator of the Federal Aviation Administration (the "FAA") to the Under Secretary as head of the TSA as of November 19, 2002. These responsibilities include carrying out the requirements of chapter 449 of title 49 of the United States Code, which pertain to civil aviation security. See 49 U.S.C. 114(d)(1). Section 40119 of title 49, a provision that formerly applied to the FAA Administrator, now states:

Notwithstanding [the Federal Freedom of Information Act (the "FOIA"),] section 552 of title 5, the Under Secretary shall prescribe regulations prohibiting disclosure of information obtained or developed in carrying out security or research and development activities . . . if the Under Secretary decides disclosing the information would--

(A) be an unwarranted invasion of personal privacy;

(B) reveal a trade secret or privileged or confidential commercial or financial information; or

(C) be detrimental to the safety of passengers in transportation.

49 U.S.C. 40119(b)(1). This provision authorizes the Under Secretary to prescribe regulations "prohibiting disclosure of information obtained or developed in carrying out security or research and development activities." The provision also authorizes the Under Secretary to prescribe regulations that prohibit disclosure of information requested not only under the FOIA, but also under other disclosure statutes. Cf. Public Citizen, Inc. v. Federal Aviation Administration, 988 F.2d 186, 194 (D.C. Cir. 1993) (former section 40119 authorized FAA Administrator to prescribe regulations prohibiting disclosure of information under other statutes as well as under the FOIA). Thus, the Under Secretary is authorized by section 40119(b)(1) to prescribe regulations that prohibit disclosure of information requested under the Act.

Pursuant to the mandate and authority in section 40119, the DOT's FAA and TSA jointly proposed new regulations pertaining to civil aviation security, which are found in title 49 of the Code of Federal Regulations, and which took effect February 17, 2002. See 67 Fed. Reg. 8340. Section 1520.1(a) of these regulations states that the regulations govern the release, by the TSA "and by other persons, of records and information that has been obtained or developed during security activities or research and development activities." 49 C.F.R. 1520.1(a) (emphasis added). Such "other persons" to which these regulations apply includes local governmental entities such as the city. See 49 U.S.C. 40102(a)(32) ("person" includes "a governmental authority"); see also 67 Fed. Reg. at 8342 (definition of "person" in regulations is based on 49 U.S.C. 40102). Thus, the regulations in title 49 of the Code of Federal Regulations apply to the city.

Section 1520.3(a) provides that, notwithstanding the FOIA "or other laws," records that meet the definition of "sensitive security information" in section 1520.7 are not available for public inspection or copying, nor is information contained in those records released to the public. See 49 C.F.R. 1520.3(a). Such "sensitive security information" includes, among other things, "[a]ny selection criteria used in any security screening process, including for persons, baggage, or cargo", "[a]ny information that TSA has determined may reveal a systemic vulnerability of the aviation system, or a vulnerability of aviation facilities, to attack . . . [such as] . . . details of inspections, investigations . . .", and "[s]ecurity information or data developed during TSA or FAA evaluations of the aircraft operators and airports and the implementation of the security programs, including aircraft operator and airport inspections and screening point tests or methods for evaluating such tests . . ." 49 C.F.R. 1520.7(a), (h)(4). As to the release of sensitive security information by persons other than the TSA, section 1520.5 provides that those covered by the regulation, which, among others, includes airport and aircraft operators, their employees, contractors, and agents, "must restrict disclosure of and access to sensitive security information . . . to persons with a need to know and must refer requests by other persons for such information to TSA or the applicable DOT administration[.]" Id. 1520.5(a) (emphasis added).

Based on this statutory scheme, we conclude that the decision to release or withhold the requested information at issue here is not for this office or the city to make, but rather a decision for the Under Secretary as head of the TSA. See English v. General Elec. Co., 496 U.S. 72, 79 (1990) (state law preempted to extent it actually conflicts with federal law); see also Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986) (federal regulation enacted by agency acting within scope of its congressionally delegated authority may preempt state regulation). You inform us that you have forwarded this request to the TSA. Therefore, in responding to the portion of this request regarding employees of the city Aviation Department, the city must comply with the TSA's directives on this matter.

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,

David R. Saldivar
Assistant Attorney General
Open Records Division
DRS/seg
Ref: ID# 173974

c: Mr. Scott Berkovitz
2409 Clear Field Drive
Plano, Texas 75025


 

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