August 20, 2007

Mr. Kent A. Brown
Assistant County Attorney
Nueces County
901 Leopard, Room 207
Corpus Christi, Texas 78401-3680

OR2007-10500

Dear Mr. Brown:

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# 286590.

Nueces County (the "county") received a request for fourteen categories of information relating to the City of Driscoll and flooding during specific years. You state that there is no information responsive to most of the requested categories. ⁽¹⁾ You also state that the only county records responsive to the request are the past and current Nueces County Emergency Management Plans (the "plan"). You claim that the past and current plans are excepted from disclosure under section 552.101 of the Government Code. ⁽²⁾ We have considered the exception you claim and reviewed the current plan submitted as a representative sample. ⁽³⁾

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 that other statutes make confidential. You assert that the submitted information is confidential in its entirety under the Texas Homeland Security Act, specifically sections 418.176, 418.177, and 418.179 of the Government Code. The fact that information may relate to a governmental body's security concerns does not make the information per se confidential under the Texas Homeland Security Act. See Open Records Decision No. 649 at 3 (1996) (language of confidentiality provisions controls scope of its protection). Furthermore, the mere recitation by a governmental body of a statute's key terms is not sufficient to demonstrate the applicability of a claimed provision. As with any exception to disclosure, a governmental body asserting one of the confidentiality provisions of the Texas Homeland Security Act must adequately explain how the responsive records fall within the scope of the claimed provision. See Gov't Code § 552.301(e)(1)(A).

Section 418.176 of the Government Code provides in relevant part:

(a) Information is confidential if the information is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity and:

(1) relates to the staffing requirements of an emergency response provider, including a law enforcement agency, a fire-fighting agency, or an emergency services agency;

(2) relates to a tactical plan of the provider; or

(3) consists of a list or compilation of pager or telephone numbers, including mobile and cellular telephone numbers, of the provider.

Id. § 418.176(a). You assert that the plan is "collected, assembled, and maintained by [the county] for the purposes of responding to emergency situations, both natural and man made, including an act of terrorism or related criminal activity." You also state that the plan contains the county's emergency management staffing requirements and includes a compilation of the contact information for the county's emergency management response staff. You argue that disclosure of any portion of the plan would "compromise the [c]ounty's ability to respond effectively to an emergency situation . . . by providing those who would commit [terroristic or criminal] acts with the information necessary to facilitate their acts and information that would assist them in avoiding apprehension." Based on your claims and our review of the plan, we agree that it is confidential under section 418.176 of the Government Code and must be withheld from disclosure pursuant to section 552.101 of the Government Code. ⁽⁴⁾

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,

Heather Pendleton Ross

Assistant Attorney General

Open Records Division

HPR/mcf

Ref: ID# 286590

Enc: Submitted documents

c: Ms. Ann Skaro

Attorney at Law

Wells Fargo Bank Tower, Suite 725

615 North Upper Broadway

Corpus Christi, Texas 78477

(w/o enclosures)

Footnotes

1. We note that the Act does not require a governmental body to disclose information that did not exist when the request for information was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex.App.-San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986).

2. Although you also seek a ruling on future versions of the plan, we note that the Act applies only to information that a governmental body possesses or has access to at the time it is requested. It is implicit in several provisions of the Act that the Act applies only to information already in existence. See Gov't Code §§ 552.002,. 021,. 227,. 351. Accordingly, this ruling does not address the public availability of any information that was not in existence when the county received the request.

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. As we are able to make this determination, we need not address your other arguments against disclosure.

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