February 9, 2001

Ms. Leah Clark
Assistant City Attorney
City of Waco
P.O. Box 2570
Waco, Texas 76702-2570

OR2001-0506

Dear Ms. Clark:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act'), chapter 552 of the Government Code. Your request was assigned ID# 144088.

The City of Waco (the "city") received a request for the "meter reading or measuring device reading" indicating the amount of raw water diverted from Lake Waco by the Lake Waco Country Club, and "all documents relating to the extension of raw water contracts from 1996 to the present" indicating under what authority the Lake Waco Country Club withdrew raw water from Lake Waco for the specified time period. You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

At the outset, we note that among other requirements, the city was required to submit to this office a copy of the specific information requested, or representative samples if the information is voluminous, not later than the fifteenth business day after the date of receiving the written request. See Gov't Code § 552.301(e)(1)(D). To date, you have not submitted for our review the requested information or representative samples. Section 552.302 of the Act provides that if a governmental body does not request an attorney general decision as provided by section 552.301, "the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code § 552.302. Sections 552.103 is a discretionary exception under the Act and does not demonstrate a compelling reason to withhold information from the public.⁽¹⁾ Accordingly, pursuant to section 552.302, the city must release to the requestor the information responsive to the request.⁽²⁾

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,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/seg

Ref: ID# 144088

cc: Mr. Raymond T. Palladino
Attorney at Law
900 Austin Avenue, Suite 101
Waco, Texas 76701-1933

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)); 592 at 8 (1991) (governmental body may waive section 552.104, information relating to competition or bidding); 549 at 6 (1990) (governmental body may waive informer's privilege); 522 at 4 (1989) (discretionary exceptions in general).

2. This office has long held that a compelling reason sufficient to overcome the section 552.302 presumption of openness exists where the information at issue is made confidential by law. See, e.g., Open Records Decision Nos. 150 (1977), 71 (1975); see also Gov't Code § 552.352 (prohibiting the release of confidential information). As you have not submitted the information, we have no basis for finding it confidential. If you believe that the information is confidential and may not lawfully be released, you must challenge this decision in court as outlined below.
 

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