June 14, 2002

Mr. Paul Sarahan, Director
Litigation Division
Texas Natural Resource Conservation Commission
P.O. Box 13087
Austin, Texas 78711-3097

OR2002-3228

Dear Mr. Sarahan:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 164340.

The Texas Natural Resource Conservation Commission ("TNRCC") received two requests for information relating to the Waste Management / BFI Landfill in northeast Austin. The first request, received March 28, 2000, sought copies of all petitions, complaints (including e-mail complaints), and other related documents received by TNRCC after January 24, 2002, which relate to the landfill odor problem. The requestor subsequently withdrew his request for e-mail documents on April 4, 2002, but reissued it the same day. The second request, received by TNRCC on April 8, 2002, sought copies of all written reports regarding actions taken to remedy the landfill odor problem, and copies of "all City of Austin and Travis County contracts for service from Waste Management and Brown Ferris Industries, along with any related correspondence or reports pertaining to the issue." We understand that both requests involve the same information at issue. You state that some of the information sought in both requests has been made available to the requestors. You claim, however, that portions of the requested information are excepted from disclosure under sections 552.101, 552.103, 552.107, 552.111, and 552.137 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

At the outset, we must address TNRCC's obligations under section 552.301 of the Government Code. Pursuant to section 552.301(e), a governmental body that receives an open records request for information that it wishes to withhold under one of the exceptions to public disclosure is required to submit to this office within fifteen business days of receiving the request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which part os the documents. With respect to the first request, TNRCC did not, however, timely submit a copy of the specific information requested or written comments stating reasons the exception raised would allow the information to be withheld. Although we understand that the information at issue and responsive to the second request is the same as the information at issue responsive to the first request, we received the arguments and information on April 22, 2002. The 15-day deadline for the first request was April 18, 2002. Thus, with respect to the first request, TNRCC has not complied with section 552.301.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; Hancock v. State Bd. Of Ins., 797 S.W.2d 379, 381-82 (Tex. App.-Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). Generally, a compelling reason sufficient to overcome the section 552.302 presumption of openness exists only where the information is confidential by law or its release implicates third party interests. See, e.g., Open Records Decision No. 150 (1977). You have raised section 552.101 of the Government Code⁽¹⁾ in conjunction with the informer's privilege. The informer's privilege has been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). Because the purpose of the informer's privilege is to protect the flow of information to a governmental body, rather than to protect a third person, the informer's privilege, unlike other claims under section 552.101 of the Government Code, can be waived. See Open Records Decision No. 549 at 6 (1990). Similarly, sections 552.103, 552.107, and 552.111 are discretionary exceptions, and may also be waived. Therefore, neither the informer's privilege nor your claimed exceptions may serve as a compelling reason for overcoming the presumption of openness under section 552.302. Consequently, TNRCC may not withhold the information at issue under these exceptions. However, as section 552.137 provides a compelling reason to overcome the presumption of openness, we will consider your arguments under that exception.

You contend that e-mail addresses within the submitted information are excepted under section 552.137. Section 552.137 requires TNRCC to withhold e-mail addresses of members of the public that are provided for the purpose of communicating electronically with a governmental body, unless the members of the public have affirmatively consented to their release. As there is no indicated that the members of the public have consented to release of the e-mail addresses in question, TNRCC must withhold from disclosure the e-mail addresses of members of the public in the submitted information, which we have marked, pursuant to section 552.137 of the Government Code.

Finally, we note that section 552.007 of the Government Code prohibits a governmental body from selectively disclosing information that is not confidential by law but that a governmental body may withhold under a discretionary exception to public disclosure. Thus, as the information responsive to both requests is the same in this case, and as TNRCC is required to release the information responsive to the March 28, 2002 request under section 552.302, we conclude that the city must also release the information at issue to the second requestor with the exception of the information protected under section 552.137. See Open Records Decision Nos. 490 at 2 (1988), 464 at 5 (1987).

To summarize, the requested information must be released to the requestors pursuant to sections 552.302 and 552.007, with the exception of the information we have marked under section 552.137.

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
Assistant Attorney General
Open Records Division
VGS/sdk
Ref: ID# 164340
Enc: Submitted Documents

c: Mr. John McCullough
Harris Branch Residential Properties
3018 Lamar, Suite 201
Austin, Texas 78705
(w/o enclosures)

Footnotes

1. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes.
 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer