|
Office of the Attorney General - State of Texas John Cornyn |
|
October 22, 2001 Mr. George D. Cato
OR2001-4789 Dear Mr. Cato: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 155771. The Texas Department of Health (the "department") received a request for information regarding a certain vendor. You claim that the requested information contains e-mail addresses that are excepted from disclosure under section 552.137(a) of the Government Code. You advise that all other requested information has been or will be released. We have considered the exception you claim and reviewed the submitted information. Subsections 552.301(a) and (b) require a governmental body that wishes to withhold information from public disclosure to ask for a decision from the attorney general no later than the tenth business day after the date of receiving the written request. In this case, this office did not receive the request for a decision within the ten business day period mandated by section 552.301(a). The department received the request for information on September 12, 2001, but did not submit a request for a decision until September 28, 2001. Because the request for a decision was not timely received, the requested information is presumed to be public information. Gov't Code § 552.302. You acknowledge that the department did not timely submit its request for a ruling, but assert that compelling reason exists to withhold the requested information. In order to overcome the presumption that the requested information is public information, a governmental body must provide compelling reasons why the information should not be disclosed. Id.; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ); see Open Records Decision No. 630 (1994). This office has held that a compelling reason exists to withhold information when the information is made confidential by another source of law or affects third party interests. See Open Records Decision No. 150 (1977). The application of section 552.137 is such a compelling reason. The 77th Legislature in Senate Bill 694 added section 552.137 to chapter 552 of the Government Code, an exception pertaining to e-mail addresses. Effective May 26, 2001, the provision states: Sec. 552.137. CONFIDENTIALITY OF CERTAIN E-MAIL ADDRESSES. (a) An e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter. (b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of the public affirmatively consents to its release. Act of May 14, 2001, 77th Leg., R.S., S.B. 694, § 1 (to be codified at Gov't Code § 552.137). Section 552.137 requires the department to withhold an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body, unless the member of the public has affirmatively consented to its release. You state that the department has received no affirmative consent from any member of the public who provided any of the e-mail addresses at issue. We therefore conclude that the e-mail addresses of members of the public are confidential under section 552.137 of the Government Code and must be withheld by the department. 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, Gregory T. Simpson
c: Ms. Cathy Clark
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |