 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 4, 2007 Mr. Matthew Tepper OR2007-15722 Dear Mr. Tepper: 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# 296069. The Eastland County Appraisal District (the "district"), which you represent, received a request for "a copy of any sales data you have with confirmed prices from sales of commercial property" for a specified time. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.148 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. 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. You contend that the submitted information is confidential under section 22.27 of the Tax Code. This section states in pertinent part: (a) 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 the submitted information is sales information that was obtained from property owners. You, however, do not inform this office whether the submitted information was provided to the district under a confidentiality agreement. In fact, you state that "[t]here is no requirement the information obtained from a property owner in connection with the appraisal of their property have been [sic] obtained under a promise of confidentiality." The statute, however, states that "information voluntarily disclosed to an appraisal office . . . about real or personal property sales prices after a promise it will be held confidential, are confidential and not open to public inspection." Id. (emphasis added). Upon review of your arguments, we find that you have failed to demonstrate that the submitted information was provided to the district under an agreement of confidentiality. Therefore, the submitted information may not be withheld under section 552.101 in conjunction with section 22.27(a) of the Tax Code. Next, you claim that the submitted information is excepted from disclosure under section 552.148 of the Government Code. Section 552.148 provides in relevant part, "[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. As noted above, you state that the submitted information consists of real property sales information obtained from property owners. 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 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 multiple listing services 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 multiple listing services 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 property owners are not private entities as intended by the legislature when enacting section 552.148. Therefore, the district may not withhold the submitted information under section 552.148 of the Government Code. You also assert that the submitted information is excepted from disclosure under section 552.110(b) of the Government Code. Section 552.110(b) protects "[c]ommercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained[.]" Gov't Code § 552.110(b). This exception to disclosure requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from release of the information at issue. Id. You contend that the release of the submitted information would cause substantial competitive harm to the property owners to which the information pertains. Specifically, you argue that releasing information would put the property owners at a disadvantage when negotiating rental prices and future sales prices. After reviewing your arguments and the submitted information, however, we find that you have made only conclusory allegations that release of the information would result in substantial competitive harm and have not provided a specific factual or evidentiary showing to support this allegation. See Open Records Decision No. 661 (1999) (must show by specific factual evidence that substantial competitive injury would result from release of particular information at issue). Thus, none of the submitted information may be withheld on the basis of section 552.110(b). As you raise no other arguments against disclosure of the submitted information, it must be released to the requestor. 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, Melanie J. Villars Assistant Attorney General Open Records Division MJV/jb Ref: ID# 296069 Enc. Submitted documents c: Ms. Abbigail Pendergraft Patrick O'Connor & Associates, P.C. 2200 North Loop West, Suite 200 Houston, Texas 77018 (w/o enclosures)
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