May 17, 2002

Ms. Mia Settle-Vinson
Assistant City Attorney
City of Houston - Legal Department
P.O. Box 1562
Houston, Texas 77251-1562

OR2002-2645

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# 163048.

The City of Houston (the "city") received a request for copies of documentation related to payments made by Westchester for damages to property resulting from Tropical Storm Allison. You claim that the submitted information is excepted from disclosure pursuant to sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted representative sample documents.⁽¹⁾

Initially, we note that section 552.022 of the Government Code makes certain information public, unless it is expressly confidential under other law. One category of public information under section 552.022 is information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body. See Gov't Code § 552.022(a)(3). Another category of public information under section 552.022 is all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate. See Gov't Code § 552.022(a)(5). Several of the documents, which we have marked, constitute information in a voucher or contract relating to the expenditure of public funds by the city and working papers used to estimate the expenditure of public funds by the city. Therefore, this information must be released to the requestor, unless it is expressly confidential under other law or the estimates associated with the working papers have not been completed. However, since the city claims that this information is excepted from disclosure under section 552.101 of the Government Code, we address that claim under the presumption that the estimates associated with the working papers have been completed.

You claim that the marked section 552.022(a) information is excepted from disclosure pursuant to section 552.101 in conjunction with section 101.104 of the Civil Practice and Remedies Code.⁽²⁾ Section 101.104 provides:

(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 that this discovery provision applies to the marked section 552.022 information. Furthermore, we note that section 101.104 consists of other law for purposes of section 552.022(a). See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). Therefore, based on the presumption that the estimates associated with the working papers have been completed, we conclude that the city must withhold the entirety of the marked section 552.022(a)(3) and (5) information from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 101.104 of the Civil Practice and Remedies Code. However, if the estimates associated with the working papers have not been completed, we conclude that the city may only withhold the marked section 552.022(a)(3) information from disclosure pursuant to section 552.101 in conjunction with section 101.104 of the Civil Practice and Remedies Code.

We now address the remaining information, as well as the marked working papers to the extent that the estimates associated with those papers have not been completed. You claim that this information is also excepted from disclosure pursuant to section 552.101 in conjunction with section 101.104 of the Civil Practice and Remedies Code. We note that section 101.104 prohibits the discovery and admission of insurance information during a trial under the Texas Tort Claims Act, chapter 101 of the Civil Practice and Remedies Code. See City of Bedford v. Schattman, 776 S.W.2d 812, 813-14 (Tex. App.--Fort Worth 1989, orig. proceeding) (protection from producing evidence of insurance coverage under section 101.104 is limited to actions brought under the Tort Claims Act). However, section 101.104 does not make insurance information confidential for purposes of section 552.101 of the Government Code. See Open Records Decision No. 551 at 3 (1990) (provisions of section 101.104 "are not relevant to the availability of the information to the public"). We note that chapter 552 of the Government Code differs in purpose from statutes and procedural rules providing for discovery in judicial proceedings. See Gov't Code §§ 552.005 (chapter 552 does not affect scope of civil discovery), .006 (chapter 552 does not authorize withholding public information or limit availability of public information to public except as expressly provided by chapter 552); see also Attorney General Opinion JM-1048 (1989); Open Records Decision No. 575 (1990) overruled in part by Open Records Decision No. 647 (1996) (section 552.101 does not encompass discovery privileges). We do not believe that section 101.104 makes the remaining information or the marked working papers, to the extent that the estimates associated with those papers have not been completed, confidential for purposes of section 552.101 of the Government Code. Accordingly, the city may not withhold any portion of the remaining information or the working papers, to the extent that the estimates associated with those papers have not been completed, pursuant to section 552.101 of the Government Code in conjunction with section 101.104 of the Civil Practice and Remedies Code.

However, you also claim that blueprints that are contained within the remaining information are excepted from disclosure pursuant to section 552.108 of the Government Code. Section 552.108(a) provides in pertinent part that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from disclosure if "release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). Section 552.108(b) provides in pertinent part that an internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from disclosure if the release of the internal record or notation would interfere with law enforcement or prosecution. See Gov't Code § 552.108(b)(1). Generally, a governmental body claiming section 552.108 as an exception to disclosure of requested information must demonstrate, if the information does not supply the explanation on its face, how and why the release of the requested information would interfere with law enforcement or prosecution. See Gov't Code §§ 552.108(a), (b), .301(e)(1)(a); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). This office has determined that procedural information related to law enforcement may, under some circumstances, be withheld under section 552.108 or its statutory predecessors. See, e.g., Open Records Decision Nos. 531 (1989) (detailed use of force guidelines), 456 (1987) (forms indicating location of off-duty police officers), 413 (1984) (security measures to be used at next execution), 341 (1982) (Department of Public Safety drivers' licenses forgery detection procedures), 143 (1976) (specific operations or specialized equipment directly related to investigation or detection of crime).

You state that the city's Security Management Division of the Building Services Department "maintains blueprints of city facilities in an effort to monitor requests therefor and, notify the Federal Bureau of Investigation, a federal law enforcement agency, where necessary" and that the release of the blueprints would "interfere with the security measures in City facilities, as well as any ensuing detective and investigative efforts." However, based on our review of your arguments and the blueprints at issue, we find that you have failed to sufficiently demonstrate how the release of the blueprints would interfere with law enforcement and crime prevention. Accordingly, we conclude that the city may not withhold the blueprints from disclosure pursuant to section 552.108 of the Government Code.

However, we note that the remaining information contains e-mail addresses that may be subject to section 552.137 of the Government Code. Section 552.137 makes certain e-mail addresses confidential and provides in pertinent part:

(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.

Gov't Code § 552.137. Accordingly, unless the members of the public in question have affirmatively consented to their release, the e-mail addresses that we have marked must be withheld from disclosure pursuant to section 552.137 of the Government Code.

In summary, the city must withhold the entirety of the marked section 552.022(a)(3) and (5) information from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 101.104 of the Civil Practice and Remedies Code based on the presumption that the estimates associated with the working papers have been completed. If the estimates associated with the working papers have not been completed, the city may only withhold the marked section 552.022(a)(3) information from disclosure pursuant to section 552.101 in conjunction with section 101.104 of the Civil Practice and Remedies Code. The city must withhold the e-mail addresses that we have marked from disclosure pursuant to section 552.137 of the Government Code, unless the members of the public in question have affirmatively consented to their release. The city must release the remaining information 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,

W. Montgomery Meitler
Assistant Attorney General
Open Records Division

WMM/RJB/seg

Ref: ID# 163048

Enc. Marked documents

cc: Ms. Mary L. Goodson
McGinnis, Lochridge & Kilgore, L.L.P.
1221 McKinney Street, Suite 3200
Houston, Texas 77010
(w/o enclosures)

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.

2. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses information protected by other statutes.
 

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