 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 30, 2005 Mr. Dan Junell
OR2005-07943 Dear Mr. Junell: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 231284. The Teacher Retirement System of Texas (the "system") received a request for management fees and other expenses paid by the system to the managers of system private equity investment funds.(1) You state that some of the requested information has been made available to the requestor, but claim that some of the submitted information is excepted from disclosure under section 552.143 of the Government Code.(2) We have considered the exception you claim and reviewed the submitted representative sample of information.(3) You inform us that the system made aggregate management fees and expenses paid to date by the system available to the requestor, but you assert that the submitted information you have highlighted, which consists of periodic management fees and expenses, is excepted under section 552.143 of the Government Code. Section 552.143 provides in relevant part the following: (a) All information prepared or provided by a private investment fund and held by a governmental body that is not listed in Section 552.0225(b) is confidential and excepted from the requirements of Section 552.021. (b) Unless the information has been publicly released, pre- and post-investment diligence information, including reviews and analyses, prepared or maintained by a governmental body or a private investment fund is confidential and excepted from the requirements of Section 552.021, except to the extent it is subject to disclosure under Subsection (c). Gov't Code § 552.143(a)-(b). After review of your arguments and the information at issue, we conclude you have established that the information at issue consists of information prepared or provided by a private investment fund. This information, for purposes of this request for information, is not subject to section 552.0225.(4) The system must therefore withhold the marked submitted information under section 552.143.(5) 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, James L. Coggeshall
c: Mr. Mark O'Hare
Footnotes 1. The system sought and received a clarification of the information requested. See Gov't Code § 552.222 (providing that if request for information is unclear, governmental body may ask requestor to clarify request); see also Open Records Decision No. 31 (1974) (when presented with broad requests for information rather than for specific records, governmental body may advise requestor of types of information available so that request may be properly narrowed). 2. See Act of May 20, 2005, 79th Leg., R.S. S.B. 121, § 2, § 552.143 (to be codified at Tex. Gov't Code § 552.143). We note that, by submitting some of the information at issue after the fifteen-business-day deadline of subsection 552.301(e), the system failed to comply with the procedural requirements mandated by section 552.301; however, because section 552.143 is a mandatory exception, we will address your argument under section 552.143. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.-Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302). 3. 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. 4. Added by Act of May 20, 2005, 79th Leg., R.S. S.B. 121, § 1, sec. 552.0225 (to be codified at Tex. Gov't Code § 552.0225. 5. As we are able to resolve this under section 552.143, we do not address your other argument for exception of the submitted information.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |