 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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October 20, 2003 Ms. Nancy Nelson
OR2003-7465 Dear Ms. Nelson: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 189667. The El Paso Community College District (the "college") received a request for "all of the records in the possession of the college addressing [the termination of two of the requestor's clients and apparent FBI investigation]." You claim that the requested information is excepted from disclosure under section 552.108 of the Government Code and the Family Educational Rights and Privacy Act of 1974 ("FERPA"). We have considered the exceptions you claim and reviewed the submitted information.(1) Initially, we note that the submitted documents contain information that falls within the purview of section 552.022 of the Government Code, which provides in pertinent part: 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). The records we have marked comprise "information in an account, voucher, or contract relating to the receipt or expenditure of public funds," and therefore, as prescribed by section 552.022, must be released to the requestor unless expressly made confidential under other law. You argue that the submitted information is excepted from disclosure under section 552.108 of the Government Code. Section 552.108 is a discretionary exception under the Public Information Act (the "Act") and does not constitute "other law" for purposes of section 552.022(a)(3). See Open Records Decision No. 177 at 3 (1977) (governmental body may waive statutory predecessor to section 552.108); see also Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). We therefore determine that the college may not withhold the information subject to section 552.022(a)(3) under section 552.108 of the Government Code. We note that the documents subject to section 552.022(a)(3) contain information which is excepted from disclosure under section 552.136 of the Government Code, which provides as follows: (a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to: (1) obtain money, goods, services, or another thing of value; or (2) initiate a transfer of funds other than a transfer originated solely by paper instrument. (b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential. Gov't Code § 552.136. We have marked the account number information the college must withhold under section 552.136. We now turn to your argument under section 552.108 of the Government Code for the information not expressly public under section 552.022(a)(3). Section 552.108(a)(1) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime." Section 552.108(b)(1) excepts "[a]n internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution . . . if . . . release of the internal record or notation would interfere with law enforcement of prosecution." The college is not a "law enforcement agency" for purposes of section 552.108. See Open Records Decision No. 199 (1978) (predecessor statute). However, a non-law enforcement agency may withhold information under section 552.108 if the information relates to possible criminal conduct and has been or will be forwarded to an appropriate law enforcement agency for investigation. See Attorney General Opinion MW-575 (1982), Open Records Decision No. 493 (1988); see also Open Records Decision No. 372 (1983) (where incident involving allegedly criminal conduct is still under active investigation or prosecution, law enforcement exception may be invoked by any proper custodian of information which relates to incident). A governmental body that raises an exception to disclosure under section 552.108 must reasonably explain how and why section 552.108 is applicable to that information. See Gov't Code § 552.301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). You state that the "subject records consist of information which is or may in the future be part of an ongoing investigation by Federal authorities." You have also included a letter from the college's Chief of Police acknowledging the college police department and administration's participation in the ongoing investigation and which indicates the Federal Bureau of Investigation is presently conducting an investigation of the college's Workforce Development Program. Based on these representations and our review of the submitted information, we conclude that the college has demonstrated the applicability of section 552.108(a)(1). Thus, the college may withhold the information not subject to section 552.022(a)(3) pursuant to section 552.108(a)(1). See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 186-87 (Tex. Civ. App.-Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases). Because we base our ruling on section 552.108(a)(1), we need not address your remaining argument. In summary, we conclude that, except for the account number information we have marked, which is excepted from disclosure under section 552.136 of the Government Code, the college must release the information we have marked under section 552.022(a)(3). The remaining submitted information may be withheld under section 552.108(a)(1) of the Government Code. 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. Victor K. Sizemore
Footnotes 1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |