|
Office of the Attorney General - State of Texas John Cornyn |
|
May 6, 2002 Ms. Mia Settle-Vinson
OR2002-2371 Dear Ms. Settle-Vinson: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162403. The City of Houston (the "city") received a request for two categories of insurance information relating to Tropical Storm Allison. You claim that some of the requested information in the first category is excepted from disclosure in accordance with a previous determination of this office, and that the remainder is excepted under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. You state that the first category of information requested (copies of insurance policies held by the city during June 2001) is the subject of a previous determination of this office. A review of our records indicates that this office previously ruled on a request for the city's insurance policies surrounding the June 2001 storm in Open Records Letter No. 2001-4963 (2001) and allowed the city to withhold that information under section 552.101 in conjunction with section 101.104 of the Texas Civil Practice and Remedies Code. Assuming the four criteria for a "previous determination" established by this office in Open Records Decision No. 673 (2001) have been met, the city may withhold the information relating to "copies of any property insurance policies the City of Houston has or had from Westshester Surplus Lines Insurance Co. covering City property during the time period of June, 2001" in accordance with Open Records Letter No. 2001-4963 (2001).(1) We note that the second category of information responsive to the request, amounts paid to the city for the city's damage claims, appears to be among the types of information expressly made public by section 552.022. Section 552.022(a)(3) provides that "information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body"is public, unless expressly confidential under other law. You contend that this information is excepted under 552.101 in conjunction with section 101.104 of the Texas Civil Practice and Remedies Code, which provides as follows: (a) Neither the existence nor the amount of insurance held by a governmental unit is admissible in the trial of a suit under [the Texas Tort Claims Act]. (b) Neither the existence nor the amount of the insurance is subject to discovery. Tex. Civ. Prac. & Rem. Code § 101.104; see In re Sabine Valley Center, 986 S.W.2d 612 (Tex. 1999) (statute "prohibits discovery of insurance covering claims against a governmental unit and against its employees for which it could be liable, directly or vicariously, under the [Texas Tort Claims] Act"). We believe this discovery provision applies to the requested insurance proceeds. Furthermore, section 101.104 of the Texas Civil Practice and Remedies Code consists of other law for purposes of section 552.022(a) of the Government Code. See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). Therefore, we conclude that the city must withhold the requested information from 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, V.G. Schimmel
c: Ms. Mary L. Goodson
Footnotes 1. The four criteria for this type of "previous determination" are 1) the records or information at issue are precisely the same records or information that were previously submitted to this office pursuant to section 552.301(e)(1)(D) of the Government Code; 2) the governmental body which received the request for the records or information is the same governmental body that previously requested and received a ruling from the attorney general; 3) the attorney general's prior ruling concluded that the precise records or information are or are not excepted from disclosure under the Act; and 4) the law, facts, and circumstances on which the prior attorney general ruling was based have not changed since the issuance of the ruling. See Open Records Decision No. 673 (2001). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |