 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 6, 2005 Mr. Michael G. Young
OR2005-00226 Dear Mr. Young: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 215445. The Texas Department of State Health Services (the "department") received a request for information concerning "the ownership status of the WIC only stores in Texas[.]" You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed 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. This section encompasses information protected by other statutes, and has been found by this office to encompass information made confidential by federal regulations. See Rainbow Group, Ltd. v. Texas Employment Comm'n, 897 S.W.2d 946 (Tex. App.--Austin 1995, writ denied) (court approves office of attorney general finding to withhold, under section 552.101, unemployment compensation identification numbers as made confidential by federal regulations). The Special Supplemental Nutrition Program for Women, Infants, and Children ("WIC") is regulated by title 7 of the Code of Federal Regulations. Section 246.26(e) of this title provides for the confidentiality of certain information about a WIC program vendor: Confidential vendor information is any information about a vendor (whether it is obtained from the vendor or another source) that individually identifies the vendor, except for vendor's name, address and authorization status. Except as otherwise permitted by this section, the State agency must restrict the use or disclosure of confidential vendor information to [specific entities]. 7 C.F.R. § 246.26(e). The purpose for protecting vendor information by limiting its use and disclosure is two-fold: "to encourage vendors to provide the information necessary to authorize and monitor vendors and to avoid compromising state agency investigative techniques." 65 Fed. Reg. 83248, 83275 (2001), see also 64 Fed. Reg. 32308, 32333 (2001). This provision is generally designed to protect all information about WIC vendors, not just identifying information. However, vendors' names, addresses, and authorization statuses, on their own, are not protected under this provision. See 7 C.F.R. § 246.26(e). Moreover, these limitations on use and disclosure are not applicable to aggregate data about WIC vendors and other data that do not individually identify a vendor. 65 Fed. Reg. 83248, 83276 (2001). Furthermore, section 246.26(e) provides for the release of confidential vendor information in certain circumstances. 7 C.F.R. § 246.26(e)(1)-(3). You assert that the requested information individually identifies WIC vendors that carry only WIC-authorized food products. You also state that these vendors sell nothing but WIC-authorized products. Based on your argument and our review of the submitted information, we find that the information at issue consists of information about vendors that individually identifies the vendors. We note that the submitted information contains the names and addresses of the vendors. However, we find that, where, as here, the request is for information concerning ownership of WIC-only stores, the release of the vendor names and addresses from the requested information necessarily reveals information about vendors beyond vendor names and addresses. We therefore conclude that all of the submitted information is subject to section 246.26(e). It is not apparent from the information you have provided that the release provisions of the regulation are applicable to this request. See id. If the department determines the requestor has a right of access to this information under section 246.26(e), the department may exercise its discretion and release the information at issue. Otherwise, the submitted information is made confidential by section 264.26(e) of title 7 of the Code of Federal Regulations and must be withheld under section 552.101 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, Cary Grace
c: Ms. Stephanie Limb
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |