 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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July 25, 2003 Ms. Sandra McMullan Liggett
OR2003-5149 Dear Ms. Liggett You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 184819. The North Harris Montgomery Community College District (the "district") received two requests from the same person for information relating to quotations for computer equipment, including the bid tabulations, the complete proposal of the winning bidder, and the comparative point analysis of the competing proposals. You inform us that the district has released most of the requested information, after redacting e-mail addresses that the district believes are excepted from public disclosure. The district takes no position with regard to the rest of the requested information. The district believes, however, that the remaining information may implicate the proprietary interests of Dell Computer Corporation ("Dell"), which submitted that information to the district. The district notified Dell of the request for information that Dell submitted to the district and of Dell's right to submit arguments to this office as to why information relating to Dell should not be released.(1) You also submitted the information that you believe may implicate Dell's proprietary interests. We have reviewed the submitted information. We first note that the second request for information poses a question to the district. In responding to a request for information under chapter 552 of the Government Code, a governmental body is not required to answer factual questions, conduct legal research, or create new information. See Open Records Decision Nos. 563 at 8 (1990), 555 at 1-2 (1990). Likewise, chapter 552 does not require a governmental body to take affirmative steps to create or obtain information that is not in its possession, so long as no other individual or entity holds that information on behalf of the governmental body that receives the request for it. See Gov't Code § 552.002(a); Open Records Decision Nos. 534 at 2-3 (1989), 518 at 3 (1989). However, a governmental body must make a good-faith effort to relate a request for information to any responsive information that is within the governmental body's possession or control. See Open Records Decision No. 561 at 8-9 (1990). We therefore assume that the district has made a good-faith effort to identify information that would be responsive to the requestor's question and has released any such information that existed on the date of the district's receipt of this request for information. If not, then the district must do so at this time. See Gov't Code §§ 552.301, .302; Open Records Decision No. 664 (2000). Next, we address your statement that Dell designated the submitted information as being confidential and subject to a non-disclosure agreement between the district and Dell.(2) We note that information is not confidential under chapter 552 of the Government Code simply because the party submitting the information anticipates or requests that it be kept confidential. See 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 an agreement or contract, overrule or repeal provisions of chapter 552. See Attorney General Opinion JM-672 (1987); Open Records Decision Nos. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the predecessor to chapter 552] cannot be compromised simply by its decision to enter into a contract"), 203 at 1 (1978) (mere expectation of confidentiality by person supplying information does not satisfy requirements of statutory predecessor to Gov't Code § 552.110). Consequently, unless the submitted information that relates to Dell comes within an exception to disclosure, it must be released, notwithstanding any expectation or agreement to the contrary. Section 552.305 of the Government Code allows an interested third party such as Dell ten business days from the date of its receipt of the governmental body's notice in which to submit its reasons, if any, as to why information relating to that party should not be released. See Gov't Code § 552.305(d)(2)(B). As of the date of this decision, this office has received no correspondence from Dell. Thus, Dell has not demonstrated that any of the submitted information is proprietary for purposes of section 552.110 of the Government Code. See Gov't Code § 552.110(a)-(b); Open Records Decision Nos. 552 at 5 (1990), 661 at 5-6 (1999). Lastly, we address your representation that the district redacted e-mail addresses from the information that has been released to the requestor. Section 552.137 of the Government Code is applicable to certain e-mail addresses and provides as follows: (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. Gov't Code § 552.137.(3) Section 552.137 is applicable only to a personal e-mail address. Section 552.137 is not applicable to institutional e-mail addresses, internet website addresses, or e-mail addresses that governmental entities maintain for their officials and employees. Furthermore, the district may not withhold a personal e-mail address if the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. Thus, the personal e-mail address of an individual who has not affirmatively consented to the public disclosure of his or her e-mail address must be withheld from the public under section 552.137. In summary, the district must withhold a personal e-mail address under section 552.137, unless the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. The submitted information must be released. 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, James W. Morris, III
c: Mr. Paul W. Cropper, Jr.
Mr. Scott Webster
Footnotes 1. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under Gov't Code ch. 552 in certain circumstances). 2. You inform us that the district was not presented with and did not execute either a non-disclosure agreement with Dell or any separate agreement addressing issues of non-disclosure. 3. We note that an identical exception for e-mail addresses is found at section 552.136 of the Government Code. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |