November 28, 2007

Ms. Sarah Pruit
Chief Appraiser
Upshur County Appraisal District
105 Diamond Loch Road
Gilmer, Texas 75644-9372

OR2007-15505

Dear Ms. Pruit:

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# 295568.

The Upshur County Appraisal District (the "district"), which you represent, received a request for "all data contained in [the district's] commercial comparable sales database," and "any sales data with confirmed prices from sales of commercial property since 1-1-2006." You claim that the requested information is excepted from disclosure under sections 552.101 and 552.148 of the Government Code. ⁽¹⁾ We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽²⁾

Section 552.101 of the Government Code 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 22.27(a) of the Tax Code provides the following:

Rendition statements, real and personal property reports, attachments to those statements and reports, and other information the owner of property provides to the appraisal office in connection with the appraisal of the property, including income and expense information related to a property filed with an appraisal office and information voluntarily disclosed to an appraisal office or the comptroller about real or personal property sales prices after a promise it will be held confidential, are confidential and not open to public inspection. The statements and reports and the information they contain about specific real or personal property or a specific real or personal property owner and information voluntarily disclosed to an appraisal office about real or personal property sales prices after a promise it will be held confidential may not be disclosed to anyone other than an employee of the appraisal office who appraises property except as authorized by Subsection(b) of this section.

Tax Code § 22.27(a). You state that some of the submitted records contain sales information that was obtained from parties to sales transactions under promises of confidentiality. Based on this representation and our review, we find that such information is confidential under section 22.27(a) and must be withheld under section 552.101 of the Government Code.

You assert the remaining information at issue is excepted under section 552.148 of the Government Code. Section 552.148 provides in relevant part that "[i]nformation relating to real property sales prices, descriptions, characteristics, and other related information received from a private entity by the comptroller or the chief appraiser of an appraisal district under Chapter 6, Tax Code, is excepted from the requirements of Section 552.021." Act of May 21, 2007, 80th Leg., R.S., ch. 471, § 1, 2007 Tex. Sess. Law Serv. 832 (Gov't Code § 552.148(a)). You state that the remaining information at issue consists of real property sales information obtained from private entities. The legislative history of section 552.148 indicates that it was enacted as a result of the issuance of several open records rulings of this office in which we ruled that information provided by Multiple Listing Services ("MLS") to appraisal districts under confidentiality agreements is subject to required public disclosure under the Act. House Comm. On State Affairs, bill Analysis, Tex. Comm. Substitute H.B. 2188, 80th Leg., R.S. (2007); see e.g., Open Records Letter Nos. 2006-07161 (2006); 2006-04628 (2006). Because of these rulings, many MLS stopped providing sales information to appraisal districts. The bill analysis of House Bill 2188 states that the purpose of section 552.148 is to allow the relationships between MLS and appraisal districts to continue. House Comm. On State Affairs, bill Analysis, Tex. Comm. Substitute H.B. 2188, 80th Leg., R.S. (2007). Accordingly, we find that, to the extent the information was obtained from a multiple listing service or other similar entity, the information is confidential under section 552.148. To the extent the information was not obtained from such an entity, the remaining information at issue is not confidential under section 552.148 of the Government Code and must be released.

To conclude, the district must withhold under section 552.101 of the Government Code in conjunction with section 22.27 of the Tax Code the submitted information that was furnished by parties to sale transactions under promises of confidentiality. The remaining information must be withheld under section 552.148 of the Government Code to the extent the information was obtained from a multiple listing service or other similar entity. To the extent the information was not obtained from such an entity, the remaining information at issue is not confidential under section 552.148 of the Government Code and must be released.

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# 295568

Enc: Submitted documents

c: Ms. Abbigail Pendergraft

Patrick O'Connor & Associates, L.P.

2200 North Loop West, Suite 200

Houston, Texas 77018

(w/o enclosures)

Footnotes

1. We note that you failed to raise section 552.101 within the ten business day deadline mandated in section 552.301(b). See Gov't Code § 552.301(b). However, because section 552.101 is a mandatory exception that can provide a compelling reason to withhold information, we will consider your arguments under this exception. 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).

2. 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.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer