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Office of the Attorney General - State of Texas John Cornyn |
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April 16, 2002 Ms. Raethella Jones
OR2002-1909 Dear Ms. Jones: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 161376. The Brazoria County District Attorney (the "district attorney") received a request to review the original and amended applications of an individual who applied to be a bail bondsman. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. We must first address the district attorney's obligation under section 552.301 of the Government Code. Subsections 552.301(a) and (b) provide: (a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the [act's] exceptions . . . must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. (b) The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request. You state that you are uncertain whether the instant request was received on January 23 or January 24. Your letter requesting a decision from this office is dated and postmarked February 9, a date more than ten business days after either possible receipt date. Thus you failed to request a decision within the period mandated by section 552.301(a) of the Government Code. Because the request for a decision was not timely made, the requested information is presumed to be public information. Gov't Code § 552.302. 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). Normally, a compelling interest is that some other source of law makes the information confidential or that third party interests are at stake. Open Records Decision No. 150 at 2 (1977). As the presumption of openness can be overcome by a showing that information is confidential by law, we will consider your arguments under section 552.101. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information made confidential by judicial decisions. You state that "[t]he County does not dispute that the personal financial records are subject to disclosure once the application has been approved; however, not during the deliberation process." As authority for your argument, you cite Apodaca v. Montes, 606 S.W.2d 734 (Tex. Civ. App.-El Paso 1980, no writ). You contend that Apodaca makes applicant information confidential by negative inference, i.e., because the court says that "the [Bail Bond] Board would be required to disclose the financial information of all those licensed by it," 606 S.W.2d at 737 (emphasis added), the court implicitly holds that the information need not be released during the application evaluation process. We disagree. The Apodaca opinion does not indicate that the court distinguished between persons who had merely applied for a license and those who had been granted one. Indeed, the court states that "Victor Apodaca, Jr., filed an application . . . for a license to act as a bondsman. The application included a list of non-exempt properties owned by the appellant and a personal financial statement, all as required by the [bail bonds] Act." Id. at 735 (emphasis added). The court later refers to releasing information from "financial statements of applicants for a bail bond permit." Id. at 736 (emphasis added). Clearly the court's analysis was not limited to the financial information of a licensed bail bondsman but encompassed the financial information provided by an applicant. We therefore find that Apodaca provides no basis for withholding the submitted information under section 552.101 of the Government Code. Section 552.101 also encompasses the common law right to privacy. In the past this office has recognized that personal financial information may be protected by common law privacy. See, e.g. Open Records Decision No. 373 at 3 (1983). Common law privacy protects information if: (1) the information contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). This office has previously determined that "all financial information relating to an individual . . . ordinarily satisfies the first requirement of common law privacy, in that it constitutes highly intimate or embarrassing facts about the individual, such that its public disclosure would be highly objectionable to a person of ordinary sensibilities." ORD No. 373 at 3. However this office also found that a legitimate public interest can exist in such financial information. Id. Although the submitted information arguably satisfies the first prong of the Industrial Foundation test, we believe the public has a legitimate interest in it. Being able to compare the information of persons who have been licensed with that of those who have been rejected allows for public oversight of the bail bond board to ensure the board is adequately protecting the public trust. Because the public has legitimate interest in the submitted information, it may not be withheld under common law privacy principles incorporated by section 552.101. We note, however, that the submitted information includes a bank account number that is subject to section 552.136 of the Government Code.(1) Section 552.136 provides as follows: (a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to: (1) obtain money, goods, services, or another thing of value; or (2) initiate a transfer of funds other than a transfer originated solely by paper instrument. (b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential. Gov't Code § 552.136. We have marked the bank account number that the district attorney must withhold under section 552.136. 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, Denis C. McElroy
c: Mr. Tom Honeycutt
Footnotes 1. The Legislature also enacted two other bills that add a section 552.136 to chapter 552. House Bill 2589 makes certain e-mail addresses confidential. See Act of May 22, 2001, 77th Leg., R.S.,ch. 545, § 5, 2001 Tex. Sess. Law Serv. 974, 975 (Vernon) (codified at Gov't Code § 552.136). Senate Bill 15 makes information maintained by family violence shelter centers confidential. See Act of May 3, 2001, 77th Leg., R.S., ch. 143, § 1, 2001 Tex. Sess. Law Serv. 279 (Vernon) (codified at Gov't Code § 552.136). Senate Bill 694 also enacted the same language as House Bill 2589 regarding the confidentiality of e-mail addresses, but codified it as section 552.137 of the Government Code. See Act of May 14, 2001, 77th Leg., R.S., ch. 356, § 1, 2001 Tex. Sess. Law Serv. 614 (Vernon) (codified at Gov't Code § 552.137). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |