May 1, 2007

Ms. Ruth H. Soucy
Deputy General Counsel
Comptroller of Public Accounts
P.O. Box 13528
Austin, Texas 78711-3528

OR2007-05020

Dear Ms. Soucy:

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# 277340.

The Comptroller of Public Accounts (the "comptroller") received a request for "[t]he names of any people who have a payroll retirement reduction withheld as part of an elected class retirement benefit." You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. This office also received arguments from the Employees Retirement System of Texas ("ERS"), in relation to the requested information. See Gov't Code § 552.304 (providing that interested party may submit written comments stating why information at issue in request for attorney general decision should or should not be released). We have considered the exceptions claimed and have reviewed the submitted information.

Section 552.101 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. Section 815.503 of the Government Code provides in pertinent part that the

[r]ecords of members, annuitants, retirees, beneficiaries, and alternate payees under retirement plans administered by the retirement system that are in the custody of the system or of an administrator, carrier, or other governmental agency acting in cooperation with or on behalf of the retirement system are confidential and not subject to public disclosure, and the retirement system is not required to accept or comply with a request for a record or information about a record or to seek an opinion from the attorney general, because the records are exempt from the public access provisions of Chapter 552, except as otherwise provided by this section.

Id. § 815.503(a); see also id. § 811.001(15) (defining "retirement system" as ERS). The comptroller has submitted a list of names and employing agencies. The comptroller states that the submitted information was obtained by the comptroller "on behalf of the [ERS] and is provided to the [ERS] for that agency's purposes only." Based upon the comptroller's arguments and our review of the submitted information, we agree that the submitted information is made confidential under section 815.503 of the Government Code and must be withheld under section 552.101 of the Government Code. ⁽¹⁾

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,

L. Joseph James

Assistant Attorney General

Open Records Division

LJJ/eeg

Ref: ID# 277340

Enc. Submitted documents

c: Mr. Jay Root

Fort Worth Star-Telegram

1005 Congress Avenue, Suite 920

Austin, Texas 78701

(w/o enclosures)

Ms. Sylvia N. Salazar

Assistant General Counsel

Employees Retirement System of Texas

P.O. Box 13207

Austin, Texas 78711

(w/o enclosures)

Footnotes

1. As our ruling on this issue is dispositive, we need not address any remaining arguments.

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