 Office of the ATTORNEY GENERAL GREG ABBOTT | |
|
March 24, 2003 Ms. Cynthia J. Hill
OR2003-1983 Dear Ms. Hill: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 178523. The Department of Information Resources (the "department") received a written request for, among other things, "Attachments A through F, for Contract DIR-SC-03-007."(1) You have submitted to this office the contract between the department and Ajilon LLC ("Ajilon"), including the requested attachments. You do not contend that the submitted information is excepted from required public disclosure, but, rather, have requested a decision from this office pursuant to section 552.305 of the Government Code, which allows governmental bodies to rely on third parties having a privacy or property interest in the information to submit their own arguments as to why the requested information should be withheld from the public. We note at the outset that portions of the requested attachments to the contract have been
designated as confidential. However, the information at issue is not confidential under the
Public Information Act (the "Act") simply because the party submitting the information
anticipates or requests that it be kept confidential. Industrial Found. v. Texas Indus. Accident
Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied 430 U.S. 931 (1977). In other words, a governmental body cannot, through a contract, overrule or repeal provisions of the Act.
Open Records Decision No. 541 at 3 (1990) ("[T]he obligations of a governmental body
under [the predecessor to the Act] cannot be compromised simply by its decision to enter into
a contract."); Open Records Decision No. 514 (1988); Attorney General Opinion JM-672
(1987). Consequently, unless the information at issue falls within an exception to disclosure,
it must be released, notwithstanding any agreement between the department and Ajilon
specifying otherwise. We next note that the requested attachments are incorporated into a contract that is subject to section 552.022 of the Government Code. Section 552.022 provides in pertinent part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: . . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] Gov't Code § 552.022(a)(3). Consequently, the department must release the requested attachments unless they are made confidential under other law. In accordance with section 552.305(d), the department notified representatives of Ajilon of the records request and of its right to submit arguments to this office as to why the requested attachments should not be released to the public. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990). An interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) to submit its reasons, if any, as to why information relating to that party should be withheld from public disclosure. See Gov't Code § 552.305(d)(2)(B). This office did not receive a response from Ajilon indicating that it wished to have any portion of its records withheld from the public. This office therefore has no basis for concluding that Ajilon has a privacy or property interest in this information. Consequently, the department must release the requested attachments to the requestor in their entirety, except for the following information. One of the requested attachments contains certain e-mail addresses that the department is required to withhold from the public. Section 552.137 of the Government Code makes certain e-mail addresses confidential and provides in relevant part: (a) An e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter. (b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of the public affirmatively consents to its release. [Emphasis added.] Some of the documents at issue contain private e-mail addresses. Accordingly, section 552.137 of the Government Code requires the department to withhold the e-mail addresses that we have marked unless the department receives an affirmative consent to release from the person to whom an e-mail address belongs. We note that section 552.137 does not apply to a public employee's governmental e-mail address or a business' general e-mail or web page address. 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 Dep't of Pub. 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
c: Mr. Francisco Cardenas
Mr. Jerry Jewell
Footnotes 1. You state that the department has released the other requested information to the requestor. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |