 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 5, 2007 Mr. James R. Evans OR2007-15994 Dear Mr. Evans: On behalf of the Caldwell County Appraisal District (the "district"), you ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 296271. The district received a request for "a copy of the appraisal district's 2006 and 2007 commercial ratio studies, including a copy of all supporting (raw) data used to create the ratio study." 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 information, which you say is a representative sample of the information at issue. (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." 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). We understand that the district is an "appraisal office" for the purposes of section 22.27(a). You indicate that the district obtained the information at issue in connection with appraisals of property from parties to sale transactions under promises of confidentiality. It does not appear that any of the exceptions listed in section 22.27(b) applies. Thus, to the extent that the information at issue was voluntarily disclosed to the district by a property owner after a promise of confidentiality, we conclude that the information is confidential under section 22.27(a) of the Tax Code and must be withheld from disclosure under section 552.101 of the Government Code. To the extent that the information at issue was not voluntarily disclosed to the district by a property owner after a promise of confidentiality, we conclude that the information is not confidential under section 22.27(a) and may not be withheld under section 552.101. You assert the remaining information at issue is excepted from disclosure under section 552.148, which 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." Gov't Code § 552.148. You state that the submitted information consists of information relating to real property sales prices, descriptions, characteristics and other related information." You also state that, "[a]ccording to the chief appraiser, all of the information in the database was collected from private entities." You do not inform us that the district is authorized to release this information to the requestor. See id. § 552.148(b). 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 remaining information was obtained from a multiple listing service or other similar entity, the information is confidential under section 552.148. To the extent the remaining 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. 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 challenge 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, Kay Hastings Assistant Attorney General Open Records Division KH/eb Ref: ID# 296271 Enc: Submitted documents c: Ms. Abbigail Pendergraft Patrick O'Connor & Associates 2200 North Loop West, Suite 200 Houston, Texas 77018 (w/o enclosures)
1. Although you did not timely raise section 552.101, the applicability of section 552.101 is a
compelling reason to overcome the presumption of openness that results from this procedural shortcoming. See
Gov't Code § § 552.301, .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). We will therefore consider your section 552.101 claim.
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 |