|
Office of the Attorney General - State of Texas John Cornyn |
|
October 22, 2002 Mr. Anthony S. Corbett
OR2002-5972 Dear Mr. Corbett: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 171064. The Brushy Creek Municipal Utility District (the "district"), which you represent, received two requests for information relating to board of directors meetings of August 1, 2002, and August 29, 2002. You state that the district will release some of the requested information. You inform us that other requested information is the subject of Open Records Letter No. 2002-4732 (2002). You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.103, 552.107, and 552.111 of the Government Code. We have considered the exceptions you raise and have reviewed the information you submitted.(1) First, we address your statement that some of the requested information is the subject of Open Records Letter No. 2002-4732 (2002). In that decision, we concluded that information created by Naismith Engineering, Inc., as the district's engineering consultants, is excepted from disclosure under section 552.111. You do not inform us of any change in the law, facts, or circumstances on which Open Records Letter No. 2002-4732 is based. We therefore conclude that the district may continue to rely on Open Records Letter No. 2002-4732 with regard to the information that is the subject of that decision. See Gov't Code § 552.301(a); Open Records Decision No. 673 at 6-7 (2001) (attorney general decision constitutes first type of previous determination under Gov't Code § 552.301(a) where (1) precisely the same records or information previously were submitted under Gov't Code § 552.301(e)(1)(D), (2) same governmental body previously requested and received a ruling, (3) prior ruling concluded that same records or information are or are not excepted from disclosure, and (4) law, facts, and circumstances on which prior ruling was based have not changed). Next, we address your arguments with regard to the remaining requested information. You assert that responsive customer account information is confidential under section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information that another statute makes confidential. You raise section 552.101 in conjunction with section 182.052 of the Utilities Code. Section 182.052 provides in part: (a) Except as provided by Section 182.054, a government-operated utility may not disclose personal information in a customer's account record, or any information relating to the volume or units of utility usage or the amounts billed to or collected from the individual for utility usage, if the customer requests that the government-operated utility keep the information confidential. However, a government-operated utility may disclose information related to the customer's volume or units of utility usage or amounts billed to or collected from the individual for utility usage if the primary source of water for such utility was a sole-source designated aquifer. (b) A customer may request confidentiality by delivering to the government-operated utility an appropriately marked form provided under Subsection (c)(3) or any other written request for confidentiality. Util. Code § 182.052(a)-(b). "Personal information" under section 182.052(a) means an individual's address, telephone number, or social security number. See id. § 182.051(4); see also Open Records Decision No. 625 (1994) (construing statutory predecessor to Util. Code § 182.052). You indicate that some of the requested account information relates to customers who have requested confidentiality under section 182.052. We note that the submitted customer information does not reflect any requests for confidentiality by the individuals to whom the information relates. Nevertheless, based on your representations and our review of the submitted customer information, we conclude that section 182.052 makes confidential the addresses and telephone numbers of individuals who requested confidentiality for their personal information under section 182.052 before the district received the request for that information. See Open Records Decision No. 625 at 7 (utility customer's address and telephone number must be released unless, prior to receipt of request for information, customer asks that information be kept confidential). The address and telephone number of an individual who did not request confidentiality prior to the receipt of the request for information are not confidential under section 182.052 and therefore not excepted from disclosure under section 552.101. We note that the submitted customer records also include information relating to the volume or units of the customer's utility usage or the amounts billed to or collected from the customer for utility usage. You do not inform us whether any of these customers timely requested confidentiality for this type of information under section 182.052. We also note that, notwithstanding a customer's request for confidentiality under section 182.052, a utility may disclose information relating to a customer's volume or units of utility usage or amounts billed to or collected from the individual for utility usage if the primary source of water for the utility is a sole-source designated aquifer. You do not inform us whether the district's primary source of water is a sole-source designated aquifer. Accordingly, we conclude that if the district's primary source of water is not a sole-source designated aquifer, and if a customer whose information is at issue timely requested confidentiality for the customer's usage and billing information, then the customer information that we have marked is excepted from disclosure under section 552.101 in conjunction with section 182.052. See Util. Code § 182.052(a); Open Records Decision No. 625 at 7. If the customer timely requested that the marked information not be disclosed, but the district's primary source of water is a sole-source aquifer, then the district has the discretion to release the marked information, notwithstanding the customer's request for confidentiality. In any event, the district must release the marked information if it relates to a customer who did not timely request confidentiality for the information under section 182.052. We also note that the customer information includes account numbers. Section 552.136 of the Government Code provides as follows: (a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to: (1) obtain money, goods, services, or another thing of value; or (2) initiate a transfer of funds other than a transfer originated solely by paper instrument. (b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential. Gov't Code § 552.136. We have marked the account numbers that the district must withhold under section 552.136. The district also raises section 552.103 of the Government Code. Section 552.103 provides in part: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. Gov't Code § 552.103(a), (c). The governmental body has the burden of providing relevant facts and documents sufficient to establish the applicability of section 552.103 to the information that is seeks to withhold. To meet this burden, the governmental body must demonstrate: (1) that litigation was pending or reasonably anticipated on the date of its receipt of the request for information and (2) that the information at issue is related to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App. - Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App. - Houston [1st Dist.] 1984, writ ref'd n.r.e.); see also Open Records Decision No. 551 at 4 (1990). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. Id. You state that some of the requested information relates to litigation to which the district is a party. You indicate that the litigation was pending when the district received these requests for information. Based on your representations and our review of the information in question, we find that you have demonstrated that the information relates to pending litigation. We also find that you have shown that the litigation was pending when the district received these requests. We therefore conclude that the information that relates to the litigation is excepted from disclosure at this time under section 552.103.(2) In reaching this conclusion, we assume that the opposing party in the related litigation has not seen or had access to the information that the district seeks to withhold under section 552.103. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties seeking information relating to that litigation to obtain it through discovery procedures. See Open Records Decision No. 551 at 4-5 (1990). If the opposing party in the pending litigation has seen or had access to information relating to the litigation, through discovery or otherwise, then there is no interest in withholding that information from public disclosure under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). Furthermore, the applicability of section 552.103 ends once the related litigation concludes. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). The district claims that the rest of the requested information is excepted from disclosure under section 552.111 of the Government Code. Section 552.111 excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." The purpose of this exception is to protect advice, opinion, and recommendation in the decisional process and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App. --San Antonio 1982, no writ); Open Records Decision No. 538 at 1-2 (1990). In Open Records Decision No. 615 (1993), this office re-examined the statutory predecessor to section 552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We determined that section 552.111 excepts only those internal communications that consist of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. See Open Records Decision No. 615 at 5. A governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. Id.; see also City of Garland v. The Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) (personnel-related communications not involving policymaking not excepted from public disclosure under section 552.111). A governmental body's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). This office also has concluded that a preliminary draft of a document intended for public release in its final form necessarily represents the drafter's advice, opinion, and recommendation with regard to the form and content of the final document, so as to be excepted from disclosure under section 552.111. See Open Records Decision No. 559 at 2 (1990) (applying statutory predecessor). Section 552.111 protects factual information in the draft that also will be included in the final version of the document. See id. at 2-3. Thus, section 552.111 encompasses the entire contents, including comments, underlining, deletions, and proofreading marks, of a preliminary draft of a policymaking document that will be released to the public in its final form. See id. at 2. You state that the remaining requested information consists of a draft of the district's 2003 budget and supporting documentation related to the draft budget. You also state that the final 2003 budget has been adopted and made available to the public. You assert that the draft budget and related documentation are excepted from disclosure under section 552.111. Based on your representations and our review of this information, we agree that it is excepted from disclosure under section 552.111. In summary, the district may continue to rely on Open Records Letter No. 2002-4732 (2002) with regard to the requested information that is the subject of that decision. The district must withhold the address and telephone number of a utility customer under section 552.101 of the Government Code if the individual timely requested confidentiality for that information under section 182.052 of the Utilities Code. A utility customer's usage and billing information, which we have marked, also is excepted from disclosure under section 552.101 if the district's primary source of water is not a sole-source designated aquifer and if the customer timely requested confidentiality for usage and billing information under section 182.052. The district may release the usage and billing information if the district's primary source of water is a sole-source designated aquifer, even if the customer timely requested confidentiality under section 182.052. The district also must withhold the marked customer account numbers under section 552.136. The information that relates to the pending litigation is excepted from disclosure at this time under section 552.103. The draft budget and related documentation are excepted from disclosure under section 552.111. The district must release the rest of the requested information. 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, James W. Morris, III
c: Mr. John C. McLemore
Footnotes 1. This letter ruling assumes that the submitted representative sample of information is truly representative of the requested information as a whole. This ruling neither reaches nor authorizes the district to withhold any information that is substantially different from the submitted information. See Gov't Code § 552.301(e)(1)(D): Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988). 2. As we are able to make this determination, we need not address your arguments with regard to this information under sections 552.107 and 552.111. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |