April 4, 2001

Ms. Ruth H. Soucy
Deputy General Counsel
Comptroller of Public Accounts
P.O. Box 13528
Austin, Texas 78711-3528

OR2001-1363

Dear Ms. Soucy:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 145646.

The Comptroller of Public Accounts (the "comptroller") received a written request for "all of the pleadings, memorandum of law, rulings of the Court, Comptroller's Decision, etc" regarding a particular hearing number. You contend that portions of the requested information are excepted from disclosure under section 552.101 of the Government Code in conjunction with sections 111.006 and 151.027 of the Tax Code.

Section 552.101 of the Government Code excepts from required public disclosure information that is confidential by law. Section 111.006 of the Tax Code provides in part as follows:

(a) The following matter is confidential and may not be used publicly, opened to public inspection, or disclosed except as permitted under Subsection (b) of this section:

(1) [federal tax return information; and ]

(2) all information secured, derived, or obtained by the comptroller or the attorney general during the course of an examination of the taxpayer's books, records, papers, officers, or employees, including an examination of the business affairs, operations, source of income, profits, losses, or expenditures of the taxpayer.⁽¹⁾ [Footnote added.]

See also Tax Code § 151.027(b) (making confidential identical information). The records at issue contain "information secured, derived, or obtained by the comptroller . . . during the course of an examination of the taxpayer's books" made confidential by section 111.006(a) of the Tax Code. We agree that the records you have identified as being provided to the comptroller by the taxpayer and the information you have marked in brackets must be withheld pursuant to section 552.101 of the Government Code in conjunction with section 111.006(a)(2) of the Tax Code.

This office has determined that "position letters" and administrative hearing decisions must be released to the public with the identity of the taxpayer redacted. See Open Records Letter No. 97-0295 (1997) and authorities cited therein. We have marked the identifying information that the comptroller must withhold pursuant to section 552.101 of the Government Code in conjunction with section 111.006(a)(2) of the Tax Code. The remaining information contained in these documents must be released.

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,

Karen A. Eckerle
Assistant Attorney General
Open Records Division

KAE/RWP/seg

Ref: ID# 145646

Encl. Submitted documents

cc: Mr. Paul J. Coselli
Coselli & Durham, P.L.L.C.
4900 Travis
Houston, Texas 77002
(w/o enclosures)

Footnotes

1. Subsection (b) of section 111.006 regarding the subpoena of confidential information in certain judicial or administrative proceedings is not applicable here.
 

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