July 12, 2004

Ms. Penny McCullough
CASA for the Highland Lakes Area
P.O. Box 1868
Kingsland, Texas 78639

OR2004-5689

Dear Ms. McCullough:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 204922.

CASA for the Highland Lakes Area ("CASA") received a request for a specified statistical report; several categories of information related to CASA volunteers, board members, staff, and advisory board members; various information related to children served by CASA; communications with judges; minutes of all meetings; and all newsletters. You state that some of the requested information is not public information. In the alternative, you indicate that some of the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered your arguments and reviewed the submitted information.

First, we assume that to the extent any other responsive information existed when CASA received this request, it has been released to the requestor. If not, you must release this information at this time. See Gov't Code § 552.006, .301, .302; see also Open Records Decision No. 664 (2000) (concluding that section 552.221(a) requires that information not excepted from disclosure must be released as soon as possible under the circumstances).

Next, we address your contention that the identities of CASA's volunteers are not subject to the Public Information Act (the "Act"). Chapter 552 is only applicable to public information. See Gov't Code § 552.021. Section 552.002 of the Government Code defines public information as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." Gov't Code § 552.002. Although you contend that portions of the requested information are not public information subject to the Act, you do not explain your basis for this conclusion. See Gov't Code §§ 552.301, .302. Accordingly, since we cannot conclude that the requested information is not subject to the Act, we turn to your alternative arguments for the submitted information.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. You raise section 552.101 in conjunction with the First Amendment to the United States Constitution. In In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (Tex. 1998), the Texas Supreme Court considered whether the protection for freedom of association under the First Amendment to the United States Constitution could operate to protect an advocacy organization's list of contributors from compelled disclosure through a discovery request in pending litigation. In reaching this conclusion, the court stated:

Freedom of association for the purpose of advancing ideas and airing grievances is a fundamental liberty guaranteed by the First Amendment. NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Compelled disclosure of the identities of an organization's members or contributors may have a chilling effect on the organization's contributors as well as on the organization's own activity. See Buckley v. Valeo, 424 U.S. 1, 66-68, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). For this reason, the First Amendment requires that a compelling state interest be shown before a court may order disclosure of membership in an organization engaged in the advocacy of particular beliefs. Tilton, 869 S.W.2d at 956 (citing NAACP, 357 U.S. at 462-63, 78 S.Ct. 1163). "'[I]t is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.'" Id.

Bay Area Citizens, 982 S.W.2d at 375-76 (footnote omitted). In determining whether disclosure may have the effect of curtailing freedom to associate, the court held that the party resisting disclosure bears the burden of making a prima facie showing that disclosure will burden First Amendment rights. Quoting the U.S. Supreme Court in Buckley v. Valeo, 424 U.S. 1, 74 (1976), the court determined that the party resisting disclosure must show "a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassments, or reprisals from either government officials or private parties." 982 S.W.2d at 376. Such proof may include "specific evidence of past or present harassment of members due to their organizational ties, or of harassment directed at the organization itself." Id.

You seek to withhold information that identifies CASA's volunteers under section 552.101 in conjunction with constitutional privacy. Having considered your arguments, we find that the disclosure of the identities of CASA's contributors would burden First Amendment rights of freedom of association. In this regard, we believe that the term "contributor" encompasses individuals who make donations to CASA. As it is our understanding that the volunteers in question donate their time and services to CASA, we believe that these individuals, with the exception of the members of CASA's governing board, fall within the scope of the "contributors" whose First Amendment right to freedom of association is implicated in this instance. Therefore, you must withhold the information that identifies contributors under section 552.101 in conjunction with constitutional privacy under Bay Area Citizens. We emphasize that the information may be withheld under section 552.101 only to the extent reasonable and necessary to protect the identity of the contributor or volunteer. Because our ruling is dispositive, we need not address your remaining argument.

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
Assistant Attorney General
Open Records Division
SIS/seg
Ref: ID# 204922
Enc. Submitted documents

c: Mr. Gary W. Gates, Jr.
2205 Avenue I #117
Rosenberg, Texas 77471
(w/o enclosures)