Office of the ATTORNEY GENERAL
December 19, 2002
Mr. Brett Bray
Dear Mr. Bray:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 174042.
The Texas Department of Transportation ("TxDOT") received a request for all information regarding a holder of a dealership license issued by TxDOT. You state that you are withholding Texas driver's license, dealer plate, and vehicle identification numbers appearing on application materials for a dealership license issued by TxDOT from the responsive information pursuant to a previous determination issued by this office in Open Records Letter No. 01-4775 (2001). See Open Records Decision No. 673 (2001) (explaining when governmental body may withhold information pursuant to previous determination issued by attorney general). You also state that you are withholding social security numbers appearing on application materials for a dealership license issued by TxDOT from the responsive information pursuant to another prior determination issued by this office in Open Records Letter No. 01-6050 (2001). You state that apart from social security numbers and driver's license numbers, you do not wish to withhold the requested information. However, you ask whether telephone verification information, copyrighted information, ownership percentages, property leases, and warranty deeds included with the submitted information, which you have marked, are considered confidential and thus excepted from disclosure under section 552.101 of the Government Code in conjunction with the doctrine of common-law privacy, under section 552.130 of the Government Code, or as copyrighted information.(1) Finally, pursuant to section 552.305 of the Government Code, you have notified European Motors, Inc., of this request for information, of the fact that the instant request for information may implicate its proprietary interests, and of its right to submit arguments to this office explaining why the requested information should not be released. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); 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 in Public Information Act in certain circumstances). We have considered the exceptions you claim and reviewed the submitted information.
We note that under section 552.305(d), an interested third party has 10 business days after the date of its receipt of the governmental body's notice to submit its reasons, if any, as to why information relating to that party should be withheld from public disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, European Motors, Inc., has not submitted to this office reasons explaining why the submitted information should not be released. Therefore, we have no basis to conclude that the submitted information is protected as the proprietary information of European Motors, Inc. See Gov't Code § 552.110(b) (to prevent disclosure of commercial or financial information, party must show by specific factual or evidentiary material, not conclusory or generalized allegations, that it actually faces competition and that substantial competitive injury would likely result from disclosure); Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990).
We now address your query as to whether section 552.101 of the Government Code applies to the information that you wish to withhold. Section 552.101, which excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," encompasses information protected by other statutes. Section 552.101 also encompasses the common-law right to privacy. Information is protected under the common-law right to privacy when (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683. Prior decisions of this office have found that personal financial information not relating to a financial transaction between an individual and a governmental body is protected by common-law privacy. See Open Records Decision Nos. 600 (1992), 545 (1990). Upon review, we find that the submitted information relating to ownership percentages is not highly intimate or embarrassing in this situation. Furthermore, common-law privacy protects the rights of individuals, not corporations. See Open Records Decision Nos. 192 (1978), 620 (1993) (corporation has no common law privacy interest in its financial information); see also United States v. Morton Salt Co., 338 U.S. 632, 652 (1950). As the licensee at issue is a corporation, the licensee has no right of privacy in the submitted information. Accordingly, we conclude that none of the submitted information may be withheld from disclosure pursuant to section 552.101 of the Government Code in conjunction with the common-law right to privacy.
Finally, the submitted information contains an account number. Section 552.136 of the Government Code states that "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136. TxDOT must, therefore, withhold the marked account number under section 552.136.
Next, we address your query as to whether some of the submitted information consists of copyrighted materials. You state that the submitted documents contain information, which you have marked, that may be protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990).
In summary, you must withhold the account number we have marked pursuant to section 552.136. You must release the remaining information, while complying with federal copyright law.
Finally, TxDOT requests that this office grant a previous determination allowing it to withhold telephone verification information, copyrighted information, ownership percentages, property leases, and warranty deeds included in its licensing files. We refuse your request at this time.
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.
Maverick F. Fisher
c: Mr. Bobby D. Mims
European Motors, Inc.
1. As you state that you are withholding driver's license numbers pursuant to a previous determination issued in Open Records Letter No. 01-4775 (2001), we need not consider your assertions under section 552.130.
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