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Office of the Attorney General - State of Texas John Cornyn |
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January 22, 2002 Mr. Don R. Bradley
OR2002-0302 Dear Mr. Bradley: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 157669. The Texas Department of Health (the "department") received a request for information regarding job posting numbers 01-TDH-1422 and 01-TDH-1299. You inform us that most of the requested information is being released to the requestor, but you claim that the remaining information is excepted from disclosure under sections 552.117, 552.122, and 552.130 of the Government Code. We have considered the exceptions claimed and reviewed the representative sample of information submitted.(1) Initially, we must address the department's failure to comply with section 552.301 of the Government Code in asking for this attorney general decision. Section 552.301 provides in relevant part that "[t]he governmental body must ask for the attorney general's decision and state the exceptions that apply . . . not later than the 10th business day after the date of receiving the written request [for information]." Gov't Code § 552.301(b). Section 552.302 provides that "[i]f 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 disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code § 552.302 (emphasis added). Here, you inform this office that the department received the request for information on October 11, 2001. Thereafter, the department had ten business days in which to ask for this decision and raise its exceptions to disclosure. You failed to ask for this decision within the time period specified by section 552.301(b), and you do not demonstrate that you otherwise complied with section 552.301(b) in requesting this decision. Thus, as you failed to comply with section 552.301(b), the requested information is presumed to be subject to disclosure and must be released unless there is a compelling reason to withhold any of the information in question. Gov't Code § 552.302; see also Hancock v. State Bd. of Ins., 797 S.W.2d 379, 380-81 (Tex. App.--Austin 1990, no writ). Generally, the operation of section 552.302 can be overcome by a demonstration that certain information is confidential by law or that it implicates the privacy interests of a third party. See Open Records Decision Nos. 630 at 3 (1994), 325 (1982). Section 552.122 is a discretionary exception to disclosure that protects the interests of the governmental body and may be waived. See Gov't Code § 552.007(a); Open Records Decision No. 522 at 4 (1989). Thus, your claim under section 552.122 does not present a compelling reason that overcomes the presumption under section 552.302 that information must be released. Accordingly, we do not address the department's arguments under section 552.122. Sections 552.117 and 552.130, however, can provide a compelling reason to overcome the presumption of openness, and we will therefore address your claims under those provisions. Section 552.117 excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Therefore, the department may only withhold information under section 552.117 on behalf of current or former officials or employees who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. In this case, you represent that the employees whose information is at issue have elected to maintain the confidentiality of certain information in accordance with section 552.024. Based on your representation and our review of the documents, we conclude that the department must withhold the information marked as excepted from disclosure under section 552.117. Section 552.130 provides in relevant part: (a) Information is excepted from the requirement of Section 552.021 if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or] (2) a motor vehicle title or registration issued by an agency of this state[.] We therefore agree that you must withhold the driver's license information you marked under section 552.130. The remaining information must be released, except as discussed above. 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. 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, Kevin J. White
c: Mr. Francis Ibezim, Jr.
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. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |