 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
|
March 8, 2004 Ms. Jill Torbert
OR2004-1744 Dear Ms. Torbert: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 197292. The Bexar County Sheriff's Office (the "sheriff") received a request for "[a] complete copy of the itemized wireless phone bills for any and all wireless phones issued to sworn personnel assigned to the Criminal Investigations Division for the billing cycles 8-17-03 to 9-16-03 and 9-17-03 to 10-16-03." You claim that the requested information is excepted from disclosure under sections 552.108, 552.117, and 552.136 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information.(1) Initially, we note that the submitted information is subject to section 552.022 of the Government Code. Section 552.022 provides in pertinent part: (a) 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). Pursuant to section 552.022, the submitted information must be released, unless it is expressly confidential under other law. Although the sheriff raises section 552.108 of the Government Code, this section, which protects law enforcement interests, is a discretionary exception and does not make information confidential for purposes of section 552.022(a)(3). See Open Records Decision Nos. 586 (1991) (governmental body may waive predecessor to section 552.108), 522 at 4 (1989) (discretionary exceptions in general). Therefore, the submitted information may not be withheld under section 552.108. However, sections 552.117 and 552.136 of the Government Code are considered "other law" for the purposes of section 552.022. Therefore, we will address your arguments for those exceptions. Section 552.117(a)(2) excepts from disclosure the present and former home addresses and home telephone numbers, personal cellular and personal pager numbers, social security number, and family member information of a peace officer regardless of whether the officer requests confidentiality for that information under section 552.024 of the Government Code.(2) You argue that the submitted cellular telephone bills are exempt from disclosure because they contain phone numbers that "can be considered a peace officer's home telephone number because an officer can be reached at his home by calling the number assigned to his phone." We note, however, that only a peace officer's personal cellular telephone number would be excepted by section 552.117(a)(2). See Open Records Decision No. 506 at 5-6 (1988) (section 552.117 not applicable to cellular mobile phone numbers paid for by governmental body and intended for official use). However, if the submitted cellular telephone bills contain the personal telephone or pager number of a peace officer, or the home number of a peace officer, that number is excepted under section 552.117 of the Government Code and must be withheld. Section 552.136 of the Government Code makes certain account numbers confidential and provides in relevant part: (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 therefore conclude that the sheriff must withhold the account numbers we have marked pursuant to section 552.136 of the Government Code. In summary, we conclude that if the submitted cellular telephone bills contain the personal telephone or pager number of a peace officer, or the home number of a peace officer, that number is excepted under section 552.117 of the Government Code and must be withheld on that basis. The account numbers we have marked must be withheld under section 552.136 of the Government Code. The remaining 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, Sarah I. Swanson
c: Mr. Vincent E. Wisely
Footnotes 1. We assume that the 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. 2. "Peace officer" is defined by article 2.12 of the Code of Criminal Procedure. |