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Office of the Attorney General - State of Texas John Cornyn |
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May 21, 2002 Mr. Marcus W. Norris
OR2002-2710 Dear Mr. Norris: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 163223. The City of Amarillo (the "city") received a request for information regarding an incident at the Amarillo International Airport. You represent that the Federal Aviation Administration (the "FAA"), an agency of the United States Department of Transportation ("DOT"), objects to the release of the information responsive to the request and has asserted that the information is confidential pursuant to federal regulations and not subject to release under the federal Freedom of Information Act.(1) You have submitted the responsive information for our review. You state that the city is uncertain whether this information "is public or confidential due to conflicting doctrines in both state and federal law." You essentially ask what law applies. We have considered your arguments and representations and have reviewed the submitted information. Effective November 19, 2001, Congress enacted the Aviation and Transportation Security Act ("ATSA"), which created the Transportation Security Administration ("TSA"), a new agency within the DOT headed by the Under Secretary of Transportation for Security (the "Under Secretary"). See 49 U.S.C.§ 114(a), (b)(1). The ATSA provides that, by November 19, 2002, the responsibility for inspecting persons and property carried by aircraft operators and foreign air carriers will be transferred from the FAA Administrator to the Under Secretary as head of the TSA. These responsibilities include carrying out the requirements of chapter 449 of title 49 of the United States Code, which pertain to civil aviation security. See 49 U.S.C. § 114(d)(1). Section 40119 of title 49, a provision that formerly applied to the FAA Administrator, now states: Notwithstanding [the Federal Freedom of Information Act (the "FOIA"),] the Under Secretary shall prescribe regulations prohibiting disclosure of information obtained or developed in carrying out security or research and development activities . . . if the Under Secretary decides disclosing the information would-- (A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the safety of passengers in transportation. 49 U.S.C. § 40119(b)(1). The language of this provision authorizes the TSA's Under Secretary to prescribe regulations "prohibiting disclosure of information obtained or developed in carrying out security or research and development activities." It authorizes the Under Secretary to prescribe regulations that prohibit disclosure of information requested not only under the FOIA, but also under other disclosure statutes. Cf. Public Citizen, Inc. v. Federal Aviation Administration, 988 F.2d 186, 194 (D.C. Cir. 1993) (former section 40119 authorized FAA Administrator to prescribe regulations prohibiting disclosure of information under other statutes as well as under the FOIA). Thus, the Under Secretary is authorized by section 40119(b)(1) to prescribe regulations that prohibit disclosure of information requested under chapter 552 of the Government Code, the Texas Public Information Act. Pursuant to the mandate and authority of section 40119, the DOT's FAA and TSA jointly published new regulations pertaining to civil aviation security, which are found in title 49 of the Code of Federal Regulations, and which took effect February 17, 2002. See 67 Fed. Reg. 8340. Section 1520.1(a) of these regulations explains that the regulations govern the release, by the TSA "and by other persons, of records and information that has been obtained or developed during security activities or research and development activities." 49 C.F.R. § 1520.1(a) (emphasis added). Such "other persons" to which these regulations apply includes local governmental entities such as the city. See 49 U.S.C. § 40102(a)(32) ("person" includes "a governmental authority"); see also 67 Fed. Reg. at 8342 (definition of "person" is based on 49 U.S.C. § 40102). Thus, the regulations in title 49 of the Code of Federal Regulations apply to the city. Section 1520.3(a) of title 49 provides in part that, "notwithstanding the [FOIA] or other laws," records that meet the definition in section 1520.7 are not available for public inspection or copying, nor is information contained in those records released to the public. 49 C.F.R. § 1520.3(a). Such information is defined to include "[a]ny information that TSA has determined may reveal a systemic vulnerability of the aviation system, or a vulnerability of aviation facilities, to attack." Id. § 1520.7(h). This includes, but is not limited to, "details of inspections, investigations, and alleged violations and findings of violations." See id. As to the release of information by persons other than the TSA, section 1520.5 provides that those covered by the regulation, which, among others, includes airport and aircraft operators, their employees, contractors, and agents, "must restrict disclosure of and access to sensitive security information . . . to persons with a need to know and must refer requests by other persons for such information to TSA or the applicable DOT administration[.]" Id. § 1520.5(a) (emphasis added). Based upon the above-described statutory and regulatory scheme, we thus conclude that the decision to release or withhold the requested information at issue here is not for this office or the city to make, but rather a decision for the Under Secretary as head of the TSA. See English v. General Elec. Co., 496 U.S. 72, 79 (1990) (noting that state law preempted to extent it actually conflicts with federal law); see also Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986) (noting that federal agency acting within scope of its congressionally delegated authority may preempt state regulation). Consequently, we conclude that the city may not release the requested information at this time under the Public Information Act and instead must refer the information request to the TSA for its decision concerning disclosure of the information at issue. In light of our conclusions above, we need not address your remaining arguments. 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, Michael Garbarino
c: Mr. James Lozada
Mr. Phillip Zaglool
Ms. Marilyn Birdwell
Footnotes 1. The FAA submitted no comment directly to this office. One paragraph of your March 8, 2002 letter to this office, copied to the FAA, purports to have notified the FAA of the request under section 552.305 of the Government Code. See Gov't Code § 552.305. The paragraph at issue, however, does not constitute a proper section 552.305 notice because it is not "in the form prescribed by the attorney general[.]" See id. § 552.305(d)(2)(B). The proper notice form is in Appendix C of this office's 2002 Public Information Handbook. The city may download a copy at: http://www.oag.state.tx.us/opinopen/og_resources.htm POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |