September 12, 2002

Ms. Ellen B. Huchital
McGinnis, Lochridge & Kilgore
3200 One Houston Center
1221 McKinney Street
Houston, Texas 77010-2009

OR2002-5113

Dear Ms. Huchital:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 168500.

The Spring Branch Independent School District (the "district"), which you represent, received a written request from a former district employee for the requestor's personnel file. You state that the district has released most of the responsive records to the requestor. You state, however, that the requestor had previously signed a "waiver" of his right to review certain reference forms completed by individuals outside the district. You contend that because of the requestor's waiver, the district is now authorized to withhold the reference forms from the requestor pursuant to section 552.101 of the Government Code. In the alternative, you contend that the reference forms are excepted from public disclosure pursuant to section 552.103 of the Government Code. This office has also received and reviewed comments from the requestor. See Gov't Code § 552.304.

We note at the outset that the requestor has informed us, and you have confirmed, that the district did not request a decision from this office within ten business days of the district's receipt of the requestor's initial request for this information. Section 552.301(a) of the Government Code requires a governmental body to request a decision from the attorney general within ten business days after receiving a request for information that the governmental body wishes to withhold, unless there has been a previous determination that the requested information is excepted from required public disclosure. When a governmental body fails to comply with the requirements of section 552.301, the information at issue is presumed public. Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). To overcome this presumption, the governmental body must show a compelling reason to withhold the information. Gov't Code § 552.302; see also Hancock, 797 S.W.2d at 381. Because the district did not request a decision from this office within ten business days of the district's receipt of the requestor's May 6, 2002 records request, the records at issue are presumed to be public pursuant to section 552.302 of the Government Code and therefore must be released unless there exist compelling reasons for withholding the information.

A compelling reason for withholding information is demonstrated where information is made confidential by other law or where third party interests are at issue. Open Records Decision No. 150 (1977). You contend that the requested information is excepted from public disclosure pursuant to sections 552.101 and 552.103 of the Government Code. Section 552.103 is a discretionary exception that does not constitute "other law" that makes information confidential. See Open Records Decision No. 542 (1990) ("litigation exception" does not implicate third party rights and therefore is waivable by a governmental body). On the other hand, because you contend that the submitted information is "confidential" for purposes of section 552.101 of the Government Code, we will address your section 552.101 claims.

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." As noted above, you contend that because the requestor previously signed a "waiver" of his right to review the submitted information, the district is now authorized to withhold that information from the requestor pursuant to section 552.101. However, it is well established that a governmental body cannot, through a contract or agreement, overrule or repeal provisions of the Public Information Act (the "Act"). Attorney General Opinion JM-672 (1987); see also Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied 430 U.S. 931 (1977). Consequently, information is not confidential under the Act simply because the party submitting the information anticipates or requests that it be kept confidential. We further note that the Act requires that a governmental body treat all requests for public information uniformly. See Gov't Code § 552.223. Accordingly, the district may not treat the current request any differently than a request for the same information from any other member of the public. See also Gov't Code § 552.007 (prohibiting selective disclosure). Consequently, because you have not demonstrated a compelling reason for withholding the submitted information, the district must release the submitted information to the requestor in its entirety, notwithstanding any "waiver" executed by the requestor specifying otherwise.⁽¹⁾

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/RWP/sdk
Ref: ID# 168500
Enc: Submitted documents

c: Mr. Theodore L. Whidden
949 Main Street
Chipley, Florida 32428
(w/o enclosures)

Footnotes

1. We note that the submitted records may contain information that is confidential as to the general public but to which the requestor has a special right of access under section 552.023 of the Government Code. If the district receives a subsequent request for this information from someone other than the requestor or the requestor's authorized representative, the district should seek another ruling from this office at that time.
 

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