 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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March 28, 2003 Mr. Joseph T. Longoria
OR2003-2112 Dear Mr. Longoria: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 178536. The Somervell County Appraisal District (the "district"), which you represent, received a request for "copies of all Board of Directors meetings from January 1999 up to and including January 2003." The requestor also seeks "copies of the minutes and all tape recordings of those meetings." You state that you have released some responsive information to the requestor. You also indicate that no tape recordings of board meetings exist. The Public Information Act (the "Act") does not require a governmental body to disclose information that did not exist at the time the request was received. Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 2-3 (1986), 342 at 3 (1982), 87 (1975); see also Open Records Decision Nos. 572 at 1 (1990), 555 at 1-2 (1990), 416 at 5 (1984). You claim that the remainder of the requested information is excepted from disclosure under sections 552.101, 552.103, 552.104, 552.107, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed your comments. We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released). As a preliminary matter, we note that you have not submitted any information to this office for our review. You state that the district seeks to withhold "documents or materials related to or regarding any executive session that took place during the time frame in question," as well as copies of the minutes of any executive session that took place during that period. As you acknowledge, the attorney general lacks the authority to review certified agendas or tapes of executive sessions when making open records decisions. See Open Records Decision No. 495 at 4 (1988) (attorney general lacks authority to review certified agendas or tapes of executive sessions to determine whether a governmental body may withhold such information from disclosure under statutory predecessor to section 552.101 of the Government Code). Thus, the district is not required to submit certified agendas or tape recordings of executive sessions information to this office for review. We will therefore begin by addressing your claim under section 552.101 of the Government Code with respect to minutes of executive sessions of the district board of directors that took place during the period in question.(1) Section 551.104(c) of the Government Code provides that "[t]he certified agenda or tape of a closed meeting is available for public inspection and copying only under a court order issued under Subsection (b)(3)." Gov't Code § 551.104(c). Such information cannot be released to a member of the public in response to an open records request. See Open Records Decision No. 495 (1988). We determine that the district must withhold minutes of executive sessions pursuant to section 552.101 of the Government Code in conjunction with section 551.104(c) of the Government Code. Next, we must address the district's obligations under section 552.301 of the Government Code with respect to responsive information other than minutes of executive sessions, to the extent it exists.(2) Under section 552.301(e), a governmental body receiving an open records request for information that it wishes to withhold pursuant to one of the exceptions to public disclosure is required to submit to this office within fifteen business days of receiving the request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. See Gov't Code § 552.301(e). You have not submitted copies or representative samples of any other responsive information, nor have you submitted comments explaining why your claimed exceptions would allow such information to be withheld. Pursuant to section 552.302 of the Government Code, a governmental body's failure to submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). Sections 552.103, 552.104, 552.107, and 552.111 are discretionary exceptions to disclosure that protect the governmental body's interests and may be waived by the governmental body. Thus, these exceptions do not demonstrate a compelling reason to withhold information from the public. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App.- Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision Nos. 630 at 4-5 (1994) (governmental body may waive statutory predecessor to section 552.107), 592 (1991) (governmental body may waive section 552.104), 473 (1987) (governmental body may waive section 552.111); see also Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). Because you have not submitted any responsive information or written comments explaining why your claimed exceptions would allow the information to be withheld, we determine that the district has waived its claims under sections 552.103, 552.104, 552.107, and 552.111 of the Government Code for any other responsive information. Furthermore, as you have not submitted any information for our review, we have no basis for finding that responsive information other than minutes of executive sessions is confidential pursuant to section 552.101 of the Government Code. We therefore conclude that any responsive information other than minutes of executive sessions must be released to the requestor. In summary, the district must withhold minutes of executive sessions of the board of directors under section 552.101 of the Government Code in conjunction with section 551.104(c) of the Government Code. Any other responsive information, to the extent it exists, must be released to the requestor. 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, David R. Saldivar
c: Mr. Carl Newman
Footnotes 1. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." 2. A governmental body must make a good faith effort to relate a request to information which it holds. See Open Records Decision No. 561 at 8 (1990). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |