 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
|
June 12, 2003 Ms. Cynthia J. Hill
OR2003-4060 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# 182673. The Department of Information Resources (the "department") received a written request for information pertaining to any contracts between the department and Veridian Corporation ("Veridian"), any correspondence or memoranda between the department and Veridian, or any correspondence or memoranda about Veridian.(1) You state that because the department has not entered into any contracts with Veridian, the department possesses no information responsive to that aspect of the request.(2) You state that some of the responsive information has been released to the requestor. You contend, however, that the remaining information coming within the scope of the request is excepted from required disclosure pursuant to sections 552.136 and 552.137 of the Government Code. Section 552.136 of the Government Code provides as follows: (a) Information is excepted from the requirements of Section 552.021 if it is information that relates to computer network security or to the design, operation, or defense of a computer network. (b) The following information is confidential: (1) a computer network vulnerability report; and (2) any other assessment of the extent to which data processing operations, a computer program, network, system, or software of a governmental body or of a contractor of a governmental body is vulnerable to unauthorized access or harm, including an assessment of the extent to which the governmental body's or contractor's electronically stored information is vulnerable to alteration, damage, or erasure. Gov't Code § 552.136. You explain that the department acts as the information resources security agency for state government. . . . Therefore, [the department] is involved in the vulnerability report process and has engaged consultants to perform cyber terrorism assessments of the vulnerability of certain government computer networks. Certain correspondence and documentation relating to the assessments might, if released to the public, increase the risk of attacks on these computer networks. In this instance, the marked portions of documents which [the department] asserts are confidential under Section 552.136, Government Code, are products of contracted work conducted for [the department], to create, conduct and evaluate "Cyber Terrorism" preparedness through live exercises. The documents in question are emails back and forth among [departmental] employees and the contractor's team members regarding various aspects of fulfilling these contracted goals. Portions of the content of some of the emails and attachments to those communications discuss, plan or are the direct work products containing information related to the design, operation and assessment of computer networks. Based on our review of your representations and the information at issue, we agree that most of the information you seek to withhold is encompassed by section 552.136(a). We have marked the information not protected by section 552.136, which must be released to the requestor. As noted above, you also contend that portions of the submitted documents are excepted from public disclosure pursuant to section 552.137 of the Government Code, which 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.] We agree that the e-mail addresses you marked as coming within the protection of section 552.137 consist of private e-mail addresses that must be withheld pursuant to section 552.137 unless the department has received 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. Finally, we note that a small portion of the submitted materials are protected by copyright. The copyright law gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. 17 U.S.C. §§ 106, 107. A governmental body must allow inspection of copyrighted materials unless the materials are otherwise excepted from required public disclosure. Attorney General Opinion JM-672 (1987) at 2-3. Also, the requestor may make copies of copyrighted materials unassisted by the state. Attorney General Opinion MW-307 (1981). "Of course, one so doing assumes the risk of a copyright infringement suit." Id. at 2. In summary, because we agree that most of the information you have marked as being confidential under section 552.136 must be withheld under that exception to disclosure, we have marked only the information that is not confidential under section 552.136 and thus must be released to the requestor. We agree that the e-mail addresses you have marked under section 552.137 must be withheld unless the department has received an affirmative consent to release from the person to whom an e-mail address belongs. The department must release the remaining submitted information to the requestor, but may not reproduce the copyrighted materials. 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, Sarah I. Swanson
c: Mr. Lucius Lomax
Footnotes 1. We note that although you have also submitted to this office certain other non-responsive documents in connection with the records request, we need not address at this time the extent to which those documents are subject to required public disclosure. 2. The Public Information Act does not require a governmental body to obtain information not in its possession or to prepare new information in response to a requestor. Open Records Decision No. 445 (1986). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |