July 17, 2002

Ms. Paula C. Flowerday
Executive Secretary
Texas Racing Commission
P.O. Box 12080
Austin, Texas 78711-2080

OR2002-3907

Dear Ms. Flowerday:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 165866.

The Texas Racing Commission (the "commission") received a request for "any email sent or received by [a named individual] to other [Emergency Services District] Commissioners." You claim that the requested information is not public information subject to disclosure under the Public Information Act and further, that the commission does not have a right of access to the information. Alternatively, you claim that portions of the submitted information are excepted from disclosure under sections 552.107 and 552.137 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Without addressing the issue of whether the submitted information is subject to chapter 552 of the Government Code, we first consider whether the commission is required to provide access to these records. Section 552.002 of the Government Code defines public information as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." You have submitted e-mails sent and received by a commission employee that you assert contain information unrelated to the commission. You maintain that the information at issue was not assembled, collected, or maintained by the commission pursuant to any statute, and that the commission does not have a right of access to the information. In this case, the governmental body "by or for" which the requested information is 'collected, assembled, or maintained" is Emergency Services District No. 12 (the "district"), not the commission. While the commission may have physical custody of the requested information, ultimate responsibility for the release or nondisclosure of the records at issue remains with the district, the governmental body by or for which the information was "collected, assembled, or maintained" pursuant to section 552.002(a). See Open Records Decision No. 576 (1990); see also Open Records Decision Nos. 674 (2001), 617 (1993) (director of Library and Archives Commission not public information officer with respect to records of other agency held by library for storage); cf. Attorney General Opinion JM-446 (1986) and authorities cited therein.

Thus, the commission is not required to disclose the information under chapter 552.⁽¹⁾ In light of this conclusion, we need not address your remaining arguments and assertions.

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,

Cindy Nettles
Assistant Attorney General
Open Records Division
CN/jh
Ref: ID# 165866
Enc. Submitted documents

c: Jesse Williams
19000 Hog Eye Road
Manor, Texas 78653
(w/o enclosures)

Footnotes

1. We explicitly do not address whether the district would be required to disclose the requested information under chapter 552.
 

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