 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 31, 2007 Mr. Scott A. Kelly OR2007-01189 Dear Mr. Kelly: 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# 270465. Texas A&M University (the "university") received a request for four categories of information related to specified research. You state that the university will withhold social security numbers under section 552.147 of the Government Code. (1) You claim that some of the requested information is excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exception you claim and reviewed the submitted information. Initially, we note that the United States Department of Education Family Policy Compliance Office (the "DOE") has informed this office that the Family Education Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code, does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information contained in education records for the purposes of our review in the open records ruling process under the Act. (2) Consequently, state and local educational authorities that receive a request for education records from a member of the public under the Act must not submit education records to this office in unredacted form, that is, in a form in which "personally identifiable information" is disclosed. See 34 C.F.R. § 99.3 (defining "personally identifiable information"). You have submitted, among other things, unredacted education records for our review, which you assert you will redact in accordance with FERPA. Because our office is prohibited from reviewing education records, we will not address the applicability of FERPA to the information at issue. Such determinations under FERPA must be made by the educational authority in possession of the education records. (3) We will, however, address the applicability of the remaining claimed exceptions to the submitted information. We next note, and you acknowledge, that the university has not complied with the time periods prescribed by section 552.301 of the Government Code in seeking an open records decision from this office. When a governmental body fails to comply with the procedural requirements of section 552.301, the information at issue is presumed public. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). To overcome this presumption, the governmental body must show a compelling interest to withhold the information. See Gov't Code § 552.302; Hancock, 797 S.W.2d at 381. This office has held that a compelling reason exists to withhold information when the information is confidential by another source of law or affects third party interests. See Open Records Decision No. 150 (1977). Because sections 552.101 and 552.117 can provide compelling reasons to withhold information, we will address your arguments regarding these sections. Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. You contend that some of the submitted information is confidential under section 552.101 in conjunction with section 418.178 of the Government Code. Section 418.178, as added to chapter 418 of the Government Code as part of the Texas Homeland Security Act, provides as follows: (a) In this section, "explosive weapon" has the meaning assigned by Section 46.01, Penal Code. (b) Information is confidential if it is information collected, assembled, or maintained by or for a governmental entity and: (1) is more than likely to assist in the construction or assembly of an explosive weapon or a chemical, biological, radiological, or nuclear weapon of mass destruction; or (2) indicates the specific location of: (A) a chemical, biological agent, toxin, or radioactive material that is more than likely to be used in the construction or assembly of such a weapon; or (B) unpublished information relating to a potential vaccine or to a device that detects biological agents or toxins. Gov't Code § 418.178. The fact that information may generally relate to biological toxins does not make the information per se confidential under section 418.178. See Open Records Decision No. 649 at 3 (1996) (language of confidentiality provision controls scope of its protection). As with any confidentiality statute, a governmental body asserting section 418.178 must adequately explain how the responsive records fall within the scope of that provision. See Gov't Code § 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies). The university asserts that section 418.178 is applicable to portions of the submitted information. You contend that some of the information in question reveals the location of biological agents or toxins that have potential for use as biological weapons and thus is protected by section 418.178(b)(2)(A). We agree that some of the information you have marked as revealing the location of toxins is confidential under section 418.178 of the Government Code and must therefore be withheld under section 552.101. We note that section 418.178(b)(2) is applicable only to information indicating the specific location of certain materials that are potentially useful in constructing or assembling such a weapon or of unpublished information relating to a potential vaccine or a device that detects biological agents or toxins. The remaining information you seek to withhold generally describes the contents of the types of facilities and laboratories at issue but does not indicate specific locations. As the university has not explained how or why section 418.178 encompasses any of the remaining information at issue, the university may not withhold any other information on that basis. We have marked the highlighted information that must be released. You next claim that the personal information of certain employees may be excepted under section 552.117(a)(1) of the Government Code. Section 552.117(a)(1) excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024 of the Government Code. Whether a particular piece of information is protected by section 552.117(a)(1) must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). The university may only withhold information under section 552.117(a)(1) if the employee made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. If the employee timely elected to keep his or her personal information confidential, the university must withhold the marked personal information under section 552.117(a)(1). The university may not withhold this information under section 552.117(a)(1) if the employee did not make a timely election to keep the information confidential. We note that some of the remaining information is protected by copyright. A governmental body must allow inspection of copyrighted information unless an exception to disclosure applies to the information. See Attorney General Opinion JM-672 (1987). An officer for public information also must comply with copyright law, however, and is not required to furnish copies of copyighted information. Id. A member of the public who wishes to make copies of copyrighted information must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 8-9 (1990). In summary, the university must withhold the information that is confidential under section 552.101 in conjunction with section 418.178 of the Government Code. For those employees who timely elected to keep their personal information confidential, the university must withhold the marked personal information under section 552.117(a)(1). The rest of the submitted information must be released. Information that is protected by copyright must be released in accordance with copyright law. This ruling does not address the applicability of FERPA to the submitted information. Should the university determine that all or portions of the submitted information consists of "education records" subject to FERPA, the university must dispose of that information in accordance with FERPA, rather than the Act. 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); 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 Office of the Attorney General 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. 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, Cindy Nettles Assistant Attorney General Open Records Division CN/eb Ref: ID# 270465 Enc. Submitted documents c: Mr. Edward Hammond The Sunshine Project P.O. Box 41987 Austin, Texas 78704 (w/o enclosures)
1. Section 552.147 provides that "[t]he social security number of a living person is excepted from"
required public disclosure under the Act. Gov't Code § 552.147. Section 552.147(b) authorizes a
governmental body to withhold a living person's social security number from public release without the
necessity of asking this office from a decision under the Act.
A copy of this letter may be found on the Office of the Attorney General's website:
http://www.oag.state.tx.us/opinopen/og_resources.shtml.
In the future, if the university does obtain parental consent to submit unredacted education records
and the university seeks a ruling from this office on the proper redaction of those education records in
compliance with FERPA, we will rule accordingly. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |