 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 12, 2007 Mr. W. Clayton Cain OR2007-02700 Dear Mr. Cain: 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# 273133. Lavaca County (the "county"), which you represent, received two requests for fourteen categories of information regarding a named individual and Sheltering Harbour, a residential treatment center. You state that the county does not maintain most of the information responsive to the request. You inform us that Sheltering Harbour maintains the majority of the requested information, and thus that the information at issue is not subject to the Act. You claim that the responsive information maintained by the county, which you have submitted, is excepted from disclosure under section 552.101 of the Government Code. We have considered your arguments and reviewed the submitted information. Initially, we address your argument that the majority of the requested documents "are not in [the county]'s control." The Act applies to "public information," defined as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business . . . for a governmental body and the governmental body owns the information or has a right of access to it." Gov't Code § 552.002(a)(2). Therefore, information that is maintained by a private entity is subject to the Act to the extent a governmental body owns or has a right of access to the information at issue. However, because we are unable to determine whether the county has a right of access to the information held by Sheltering Harbour, we must rule conditionally. To the extent that the requested information is maintained by Sheltering Harbour for the county's use, it is subject to the Act and may only be withheld if an exception applies. As you claim no exception to disclosure for this information, if you have not released any such records, you must do so at this time. See id. §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible). To the extent that the county does not have a right of access to the information held by Sheltering Harbour, it is not subject to disclosure under the Act. We must also address the county's obligations under section 552.301 of the Government Code, which prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(e), a governmental body must submit to this office within fifteen business days of receiving an open records request a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. See Gov't Code § 552.301(e)(1)(D). The county received the request for information on December 12, 2006, but did not submit the information at issue until January 6, 2007. Thus, the county failed to comply with the procedural requirements mandated by section 552.301. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. 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); Open Records Decision No. 319 (1982). A compelling reason exists when third-party interests are at stake or when information is confidential under other law. Open Records Decision No. 150 (1977). Because section 552.101 of the Government Code can provide a compelling reason to withhold information, we will address your arguments under this section. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," and encompasses information made confidential by other statutes. Gov't Code § 552.101. Section 58.007(c) of the Family Code provides as follows: (c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B. Fam. Code § 58.007(c). The submitted information involves juvenile conduct that occurred after September 1, 1997. None of the exceptions in section 58.007 appear to apply. Therefore, the submitted information is confidential pursuant to section 58.007(c) of the Family Code and must be withheld under section 552.101 of the Government Code. As our ruling on this issue is dispositive, we do not address your remaining arguments. In summary, to the extent that the requested information is maintained by Sheltering Harbour for the county's use, it is subject to the Act and must be released to the requestor at this time. To the extent the county does not have a right of access to the requested information held by Sheltering Harbour, it is not subject to disclosure under the Act. The submitted information must be withheld under section 58.007 of the Family Code in conjunction with 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, 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, Amy L.S. Shipp Assistant Attorney General Open Records Division ALS/krl Ref: ID# 273133 Enc. Submitted documents c: Ms. Gail D. C. Dorn P. O. Box 23064 Corpus Christi, Texas 78403 (w/o enclosures)
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