 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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September 25, 2003 Mr. T. Daniel Santee II
OR2003-6762 Dear Mr. Santee: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 188282. The City of Abilene (the "city") received a request for (1) incident/case and call sheet information relating to a named individual and a specified address during a stated time interval and (2) information relating to calls by a named individual. You claim that two responsive police reports are excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and have reviewed the information you submitted. We assume that the city has released any other information that is responsive to this request for information, to the extent that such information existed when the city received the request. If not, then the city must do so at this time. See Gov't Code §§ 552.221(a), .301, .302; Open Records Decision No. 664 (2000).(1) We note that chapter 552 of the Government Code does not require the city to release information that did not exist when it received this request or to create responsive information. See Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 452 at 3 (1986), 362 at 2 (1983). Next, we note that the city has not complied with section 552.301 of the Government Code in requesting this decision. Section 552.301 prescribes procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Section 552.301(b) requires the governmental body to ask for the attorney general's decision and state the exceptions to disclosure that it claims not later than the tenth business day after the date of its receipt of the written request for information. See Gov't Code § 552.301(b). If a governmental body does not request an attorney general decision as prescribed by section 552.301, the information requested in writing is presumed to be subject to required public disclosure and must be released, unless there is a compelling reason to withhold the information. See id. § 552.302. You inform this office that the city received the present request for information on July 2, 2003. Therefore, July 17, 2003 was the city's ten-business-day deadline to request this decision under section 552.301(b). The city's request for this decision is dated July 15, 2003. However, the envelope in which the city submitted its request for this decision is stamped "Returned for Postage" and does not bear any postmark of any kind. Likewise, the city has not provided this office with any proof of the actual date of submission of its request for this decision. See Gov't Code § 552.308(a).(2) Furthermore, this office eventually received the city's request for this decision on July 23, 2003, which is beyond the ten-business-day period prescribed by section 552.301(b). Under these circumstances, we are unable to conclude that the city has complied with section 552.301(b) in requesting this decision. Therefore, the submitted information is presumed to be public and must be released under section 552.302, unless there is a compelling reason to withhold any of the information from the public. See also Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ). The presumption that information is public under section 552.302 can generally be overcome when the information is confidential by law or third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). Section 552.108 of the Government Code is a discretionary exception to disclosure that protects the governmental body's interests and may be waived. See Open Records Decision No. 177 at 3 (1977) (governmental body may waive law enforcement exception). The city's claim under section 552.108 does not provide a compelling reason for non-disclosure under section 552.302. But see Open Records Decision No. 586 at 3 (1991) (need of another governmental body to withhold information under section 552.108 can provide compelling reason for non-disclosure under section 552.302). In failing to comply with section 552.301, the city has waived its claim under section 552.108. See Gov't Code § 552.007; Open Records Decision No. 663 at 5 (1999) (untimely request for decision resulted in waiver of governmental body's discretionary exceptions). Therefore, the city may not withhold any of the submitted information under section 552.108. We note, however, that report number 03-009630 contains a social security number that the city may be required to withhold under section 552.101 of the Government Code. Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information that another statute makes confidential. A social security number may be excepted from disclosure under section 552.101 in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I), if a governmental body obtained or maintains the social security number pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 at 2-4 (1994). It is not apparent to this office that the social security number in report number 03-009630 is confidential under section 405(c)(2)(C)(viii)(I) of the federal law. You have cited no law, and we are aware of no law, enacted on or after October 1, 1990 that authorizes the city to obtain or maintain a social security number. Thus, we have no basis for concluding that the social security number in question was obtained or is maintained pursuant to such a law and is therefore confidential under the federal law. We caution the city, however, that chapter 552 of the Government Code imposes criminal penalties for the release of confidential information. See Gov't Code §§ 552.007, .352. Therefore, before releasing the social security number that we have marked, the city should ensure that this social security number was not obtained and is not maintained pursuant to any provision of law enacted on or after October 1, 1990. The submitted police reports also contain information that either is or may be encompassed by section 552.130 of the Government Code. Section 552.130 excepts from public disclosure information that relates to (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; (2) a motor vehicle title or registration issued by an agency of this state; or (3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document. Gov't Code § 552.130(a). We have marked what appears to be a Texas driver's license number in report number 03-009630. If the marked information relates to a Texas driver's license, then it must be withheld from the requestor under section 552.130(a)(1). Report number 03-009630 also contains Texas vehicle registration information and a vehicle identification number, which we also have marked. The city must withhold that information under section 552.130(a)(2). We also note that report number 03-009982 appears to contain information that must be withheld from the public under section 552.130. However, that information relates to the requestor. The requestor has a special right of access to her own section 552.130 information under section 552.023 of the Government Code.(3) Information to which the requestor has a right of access under section 552.023 may not be withheld from her under section 552.130, as this exception protects privacy interests. In summary, the marked social security number in report number 03-009630 may be excepted from disclosure under section 552.101 of the Government Code in conjunction with section 405(c)(2)(C)(viii)(I) of title 42 of the United States Code. The other marked information in that report must be withheld from the requestor under section 552.130, to the extent that the marked information relates to a Texas driver's license, vehicle registration, or vehicle identification number. The rest of 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: Ms. Louisa Silva
Footnotes 1. See also Act of May 16, 2003, 78th Leg., R.S., ch. 791, § 1, Vernon's 2003 Sess. Law Serv. 2341 (amending Gov't Code § 552.221(a) to provide that "In this subsection, 'promptly' means as soon as possible under the circumstances, that is, within a reasonable time, without delay"). 2. As amended by the Seventy-Eighth Legislature, section 552.308(a) of the Government Code provides that when chapter 552 of the Government Code requires a request, notice, or other document to be submitted or otherwise given to a person within a specified time period, the requirement is met in a timely fashion if the document is sent to the person by first class United States mail or common or contract carrier properly addressed with postage or handling charges prepaid and (a) it bears a post office cancellation mark or a receipt mark of a common or contract carrier indicating a time within that period or (2) the person required to submit or otherwise give the document furnishes satisfactory proof that it was deposited in the mail or with a common or contract carrier within that period. See Gov't Code § 552.308(a); S.B. 919, Acts 2003, 78th Leg., R.S., § 1 (to be codified as amendment to Gov't Code § 552.308(a). 3. See Gov't Code § 552.023(a) (person or person's authorized representative has special right of access, beyond right of general public, to information held by governmental body that relates to person and is protected from public disclosure by laws intended to protect person's privacy interests); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual asks governmental body for information concerning herself). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |