October 25, 2002

Ms. Pamela Smith
Assistant General Counsel
Texas Department of Public Safety
P. O. Box 4087
Austin, Texas 78773-0001

OR2002-6049

Dear Ms. Smith:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 171258.

The Texas Department of Public Safety (the "department") received a request under the Public Information Act (the "Act") for a copy of the most recently updated list of concealed handgun license instructors, including full name, complete mailing address, phone number, and e-mail address of each record. You indicate that the requested information, or portions thereof, may be excepted from disclosure pursuant to sections 552.101 and 552.137 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.

You raise section 411.192 of the Government Code, which provides as follows:

[t]he department shall disclose to a criminal justice agency information contained in its files and records regarding whether a named individual or any individual named in a specified list is licensed under this subchapter. The department shall, on written request and payment of a reasonable fee to cover costs of copying, disclose to any other individual whether a named individual or any individual whose full name is listed on a specified written list is licensed under this subchapter. Information on an individual subject to disclosure under this section includes the individual's name, date of birth, gender, race, and zip code. Except as otherwise provided by this section and by Section 411.193, all other records maintained under this subchapter are confidential and are not subject to mandatory disclosure under the open records law, Chapter 552, except that the applicant or license holder may be furnished a copy of disclosable records on request and the payment of a reasonable fee. The department shall notify a license holder of any request that is made for information relating to the license holder under this section and provide the name of the person or agency making the request. This section does not prohibit the department from making public and distributing to the public at no cost lists of individuals who are certified as qualified handgun instructors by the department.

Gov't Code § 411.192.⁽¹⁾

You state that the department maintains a database that contains all of the information requested by the requestor. As responsive to the request, you have submitted to this office a copy of a database printout that lists handgun instructors' names, mailing addresses, phone numbers, and e-mail addresses. The department acknowledges that it is not prohibited from making public lists of individuals who are certified as qualified handgun instructors. However, the department also contends that section 411.192 does not specify what data can be included on a list provided by the department. Therefore, you request clarification from our office as to whether a list that is permitted to be disclosed under section 411.192 should only contain names of licensed handgun instructors or whether it may also contain other information that appears in the department's database. The question before us in this matter is what information the department must provide to the requestor from the database in response to a request for information under the Act.

The department has adopted rules pertaining to the public release of information concerning handgun instructors and licensees. See 37 T.A.C. §§ 6.111-.114. Rule 6.111 of those rules provides that a list of certified handgun instructors shall be made available to the public. See 37 T.A.C. § 6.111. This rule also provides that a certified instructor may request that his or her name be removed from the list that the department voluntarily makes available to the public, but that the name remains subject to a request for information under the Act. Thus, this rule concerning the availability of a "list" is intended to cover the situation where the department on its own and, not pursuant to a request under the Act, develops and distributes to the public at no cost a list of instructors. This "list" is distinguishable from the situation here, where a request for information about instructors is submitted to the department pursuant to the Act. The department's own rules acknowledge this distinction. See id.

This ruling does not address the contents of a list of certified instructors that the department distributes to the public at no cost pursuant to section 411.192 and rule 6.111. This ruling only addresses the pending request for information under the Act for instructors' full name, complete mailing address, phone number, and e-mail addresses in list form and the exception from disclosure that is raised regarding section 552.101 of the Government Code in conjunction with section 411.192 of the Government Code. Section 552.101 excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. See Gov't Code § 552.101. Section 552.101 encompasses information protected from disclosure by other statutes. Section 411.192 provides that "[i]nformation on an individual subject to disclosure under this section includes the individual's name, date of birth, gender, race, and zip code."⁽²⁾ Gov't Code § 411.192; see also 37 TAC § 6.113. Thus, this provision of section 411.192 delineates the only categories of information concerning individuals that are subject to disclosure. Based on our review of the submitted information and the information that was requested, we find that the only categories of information concerning instructors that are contained within the database printout before us that are subject to disclosure are the instructors' names and zip codes. Accordingly, we conclude that the department must release to the requestor the names and zip codes of the instructors that are contained within the submitted database printout. However, because section 411.192 provides that all other records maintained under subchapter H are confidential, we conclude that the department must withhold from disclosure the remaining information contained within the submitted database printout pursuant to section 552.101 of the Government Code in conjunction with section 411.192 of the Government Code. See also 37 TAC §§ 6.113, .114. Because we base our ruling on section 552.101, we need not address the applicability of your other claimed exception to disclosure.

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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division

RJB/lmt

Ref: ID# 171258

Enc. Submitted documents

cc: Mr. Jerry Patterson
P. O. Box 40218
Austin, Texas 78704
(w/o enclosures)

Footnotes

1. Section 411.193 provides:

[t]he department shall make available, on request and payment of a reasonable fee to cover costs of copying, a statistical report that includes the number of licenses issued, denied, revoked, or suspended by the department during the preceding month, listed by age, gender, race, and zip code of the applicant or license holder.

Gov't Code § 411.193.

2. We note that section 411.192 also requires that the department notify a license holder of any request that is made for information relating to the license holder and provide the name of the person or agency making the request. See Gov't Code § 411.192; see also 37 TAC § 6.113(b).
 

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