 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 11, 2005 Ms. Karen Nelson
OR2005-01292 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# 218613. The City of DeSoto (the "city"), which you represent, received five requests from the same requestor seeking various categories of information. You state that you have no responsive information regarding a portion of the requests. We note that the Public Information Act (the "Act") does not require a governmental body to disclose information that did not exist at the time the request was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex.Civ.App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986). You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.103, 552.107, 552.108, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information.(1) As you acknowledge, the five present requests are identical to five requests that were the subject of two previous rulings from this office. In both Open Records Letter Nos. 2005-00092 (2005) and 2005-00836 (2005), the city failed to comply with section 552.301 of the Government Code in requesting a ruling from our office, and thus was required to release the requested information. Information that has been previously released may not be withheld from any requestor unless the governmental body is able to demonstrate that the information is confidential by law. See Gov't Code § 552.007. Although you raise sections 552.103, 552.107, 552.108, and 552.111 as exceptions to the disclosure of this information, these exceptions are discretionary and may be waived. As such, these exceptions do not make information confidential. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App--Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision Nos. 630 (1994) (section 552.107 is discretionary exception), 473 (1987) (statutory predecessor to section 552.111 may be waived), 177 (1977) (governmental body may waive statutory predecessor to section 552.108); see also Open Records Decision No. 522 (1989) (discretionary exceptions in general). The city also raises section 552.101 of the Government Code as an exception to disclosure. Ordinarily, this exception provides a compelling reason for overcoming the presumption of openness. However, the city has not provided any arguments to explain the applicability of section 552.101 to the requested information. Therefore, the city has not demonstrated that any of the requested information is confidential by law. See Gov't Code § 552.301(e). As the city raises no further exceptions to disclosure, we conclude the requested information must be released in its entirety. 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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); Tex. 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, Lauren E. Kleine
c: Ms. Loralyn Cartwright
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 |