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Office of the Attorney General - State of Texas John Cornyn |
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March 1, 2002 Ms. Laura Garza Jimenez
OR2002-1014 Dear Ms. Jimenez: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 159301. Nueces County (the "county") received a request for copies of commercial general liability policies, business automobile liability insurance policies, and umbrella liability insurance policies for each of the past four years. You state that you maintain no umbrella liability insurance policies for any year and no commercial general liability policies for the year 2001.(1) Although you claim that release of the submitted information may implicate the proprietary interests of third parties, you take no position as to whether the information is excepted from disclosure. We have reviewed the submitted information. You state, and provide documentation showing, that you notified two potential third parties whose proprietary interests may be implicated by the request, the Texas Association of Counties ("TAC") and Swantner and Gordon Insurance Agency ("Swantner"), of the county's receipt of the request pursuant to section 552.305 of the Government Code. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); see also Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Public Information Act under certain circumstances). As of the date of this letter, our office has not received any comments from TAC or Swantner explaining why any portion of the submitted information should not be released to the requestor. Therefore, we have no basis on which to conclude that any portion of this information is excepted from disclosure pursuant to section 552.110 of the Government Code. See Open Records Decision Nos. 552 at 5 (1990) (stating that if governmental body takes no position, attorney general will grant exception to disclosure under statutory predecessor to Gov't Code § 552.110(a) if third party makes prima facie case that information qualifies as trade secret under section 757 of Restatement of Torts, and no argument is presented that rebuts claim as matter of law), 661 at 5-6 (1999) (stating that business enterprise that claims exception for commercial or financial information under Gov't Code § 552.110(b) must show by specific factual evidence that release of requested information would cause that party substantial competitive harm). However, we note that some portions of the information appear to be protected by copyright law. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. See Attorney General Opinion JM-672 (1987). However, a governmental body must allow inspection of copyrighted materials, unless an exception to disclosure applies to the information. See id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making such copies, we note that the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990). Accordingly, the county must allow the requestor to inspect the copyrighted information. However, if the requestor wishes to make copies of such materials, the requestor assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. We also note that the information contains Texas driver's license numbers that are subject to section 552.130 of the Government Code. Section 552.130 excepts information from disclosure that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. See Gov't Code § 552.130. Accordingly, the county must withhold the Texas driver's license numbers that we have marked pursuant to section 552.130 of the Government Code. In summary, the county must withhold the Texas driver's license numbers that we have marked pursuant to section 552.130 of the Government Code. The county must release the remaining information to the requestor, with the exception of the information that is subject to copyright law, access to which must be provided to the requestor. 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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, Ronald J. Bounds
RJB/seg Ref: ID# 159301 Enc. Marked documents cc: Mr. James A. Holmes
Ms. Beth Bergen
Mr. Leroy Ryza
Footnotes 1. It is implicit in several provisions of the Public Information Act (the "Act") that the Act applies only to information already in existence. See Gov't Code §§ 552.002, .021, .227, .351. The Act does not require a governmental body to prepare new information in response to a request. See Attorney General Opinion H-90 (1973); see also Open Records Decision Nos. 87 (1975), 342 at 3 (1982), 416 at 5 (1984), 452 at 2-3 (1986), 555 at 1-2 (1990), 572 at 1 (1990). A governmental body must only make a good faith effort to relate a request to information which it holds. See Open Records Decision No. 561 at 8 (1990). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |