March 7, 2001

Ms. Julie Reagan Watson
Assistant General Counsel
Texas Department of Human Services
P.O. Box 149030
Austin, Texas 78714-9030

OR2001-0900

Dear Ms. Watson:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 144803.

The Texas Department of Human Services (the "department") received a request for a copy of the region 6 "Contract Manager Work Plan." You indicate that you have released to the requestor most of the information responsive to the request. You have submitted as exhibit B a representative sample of the information you seek to withhold.⁽¹⁾ You assert that this information is excepted from disclosure under section 552.116 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.116 provides in relevant part:

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.

Gov't Code § 552.116(a). You explain:

Through contracts with independent day-care centers and sponsoring organizations, the department's Special Nutrition Programs, Child and Adult Care Food Program ("CACFP") provides cash reimbursement to child and adult day-care providers ("contractors") for serving meals to participants who meet U.S. Department of Agriculture ("USDA") standards. The CACFP is administered under the authority of the National School Lunch Act, 42 U.S.C.A. §§ 1751-1769h (1994 & Supp. 2000), and the Child Nutrition Act of 1966, 42 U.S.C.A. §§ 1771-1790 (1994 & supp. 2000). Section 17 of the National School Lunch Act, as amended, authorizes assistance to States through grants-in-aid and other means to initiate, maintain, and expand nonprofit food service programs for children or adult participants in nonresidential institutions which provide care. 7 C.F.R. § 226.1 (2000).

The information at issue pertains to the department's administration of the above-described programs. An "audit" as that term is used in section 552.116 means "an audit authorized . . . by a statute of this state or the United States[.]" Gov't Code § 552.116(b)(1). We note that as part of administering the above-described programs, federal regulations specifically provide that the "books and records of the food service management company pertaining to the institution's food service operation shall be available for inspection and audit by representatives of the [department]." 7 C.F.R. § 226.6(i)(5). Thus, the department is specifically authorized to conduct such audits. Further, your representations demonstrate that the documents in exhibit B meet the definition of an "audit working paper." See Gov't Code § 552.116(b)(2). We therefore conclude that the department may withhold the information at issue pursuant to section 552.116.

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# 144803

Encl. Submitted documents

cc: Mr. John Tyer
Child Care Services
P.O. Box 71
Lufkin, Texas 75901
(w/o enclosures)

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
 

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