 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 21, 2007 Mr. Charles Buenger OR2007-16874 Dear Mr. Buenger: 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# 297800. The City of Richland (the "city"), which you represent, received a request for 14 categories of information related to a former city employee and a specified incident. You state that the city does not possess information responsive to categories 5, 6, 9, 10, and 11. (1) You claim that the submitted information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information. Initially, we address your assertion that the tape recorded portions of closed sessions of the city council's meetings are not open records. Section 552.101 of the Government Code excepts from disclosure information deemed confidential by law. Section 551.104(c) of the Government Code provides that "[t]he certified agenda or tape of a closed meeting is available for public inspection and copying only under a court order issued under Subsection (b)(3)." Gov't Code § 551.104(c). Thus, such information cannot be released to a member of the public in response to an open records request. (2) See Open Records Decision No.495 at 4 (1988). Accordingly, the city must withhold any responsive certified agenda or tape recording of a closed meeting of the city council under section 552.101 of the Government Code in conjunction with section 551.104(c) of the Government Code. Next, we note that some of the submitted information consists of minutes of open meetings of the city council. Section 551.022 of the Open Meetings Act, chapter 551 of the Government Code, expressly provides that the "minutes and tape recordings of an open meeting are public records and shall be available for public inspection and copying on request to the governmental body's chief administrative officer or the officer's designee." Gov't Code § 551.022. Information that is specifically made public by statute may not be withheld from the public under any of the exceptions to public disclosure under chapter 552 of the Government Code. See, e.g., Open Records Decision Nos. 544 (1990), 378 (1983), 161 (1977), 146 (1976). Therefore, the city may not withhold the submitted open meeting minutes, which we have marked, under the claimed exception and must release this information to the requestor. We note that the submitted information includes documents that are subject to section 552.022 of the Government Code. Section 552.022 provides, in relevant part: (a) the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108; [and] . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] Gov't Code § 552.022(a)(1), (3). The submitted information contains completed audit reports made for or by the city, which are expressly public under section 552.022(a)(1). The submitted information also includes account information relating to the expenditure of public or other funds by the city, which is expressly public under section 552.022(a)(3). Although you claim that the submitted information is excepted from disclosure under section 552.103 of the Government Code, we note that this exception to disclosure is a discretionary exception under the Act that does not constitute "other law" for purposes of section 552.022. (3) Thus, the city may not withhold the information subject to section 552.022, which we have marked, under section 552.103 of the Government Code. We note, however, that the information subject to section 552.022 contains information subject to section 552.130 and section 552.136 of the Government Code. (4) Section 552.130 excepts from disclosure "information [that] relates to. . . a motor vehicle operator's or driver's license or permit issued by an agency of this state [or] a motor vehicle title or registration issued by an agency of this state." Id. § 552.130. Accordingly, the city must withhold the Texas driver's license numbers we have marked pursuant to section 552.130 of the Government Code. Section 552.136 of the Government Code provides: (a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to: (1) obtain money, goods, services, or another thing of value; or (2) initiate a transfer of funds other than a transfer originated solely by paper instrument. (b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential. Id. § 552.136. Accordingly, the city must withhold the account numbers under section 552.136. We have marked a representative sample of the information the city must withhold pursuant to section 552.136. We address your claim under section 552.103 of the Government Code for the remaining information. Section 552.103 provides in relevant part as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. Gov't Code § 552.103(a), (c). A governmental body has the burden of providing relevant facts and documents to show that the section 552.103 exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation was pending or reasonably anticipated on the date that the governmental body received the request for information, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). A governmental body must meet both prongs of this test for information to be excepted under section 552.103. You assert that the remaining submitted information is related to a pending lawsuit to which the city is a party. Case number 07-16644-CV was filed on September 21, 2007 in the 13th District Court of Navarro County, Texas. The suit was filed before the date of the city's receipt of this request for information. You have provided a copy of the petition which names the city as the plaintiff. Based on your representations and the submitted pleadings, we conclude that the city was a party to pending litigation when it received this request for information. We also conclude that the remaining information is related to the pending litigation. Therefore, section 552.103 is generally applicable to the remaining submitted information and it may be withheld on that basis. However, once the information at issue has been obtained by all parties to the anticipated litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to the information. See Open Records Decision Nos. 349 (1982), 320 (1982). Thus, any submitted information that has either been obtained from or provided to all other parties in the anticipated litigation is not excepted from disclosure under section 552.103(a) and must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has concluded or is no longer anticipated. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982). In summary, the city must withhold any responsive certified agenda or tape recording of a closed meeting of the city council under section 552.101 of the Government Code in conjunction with section 551.104 of the Government Code. The city must withhold the Texas driver's license numbers we have marked under section 552.130. We have marked a representative sample of the information the city must withhold under section 552.136. The city must release the submitted open meeting minutes and the remaining information subject to section 552.022, which we have marked, to the requestor. (5) The city may withhold the remaining information under section 552.103 of the Government Code. 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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, Jordan Johnson Assistant Attorney General Open Records Division JJ/jb Ref: ID# 297800 Enc. Submitted documents c: Mr. Terry Jacobson Jacobson, Beard & Edmondson, P.C. 733 West Second Avenue Corsicana, Texas 75110 (w/o enclosures)
1. We note that the Act does not require a governmental body to disclose information that did not exist
at the time the request was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266
(Tex.Civ.App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986).
As you acknowledge, the city is not required to submit a certified agenda or tape recording of a closed
meeting to this office for review. See Open Records Decision No. 495 at 4 (attorney general lacks authority
to review certified agendas or tapes of executive sessions to determine whether a governmental body may
withhold such information from disclosure under statutory predecessor to section 552.101 of the Government
Code).
Discretionary exceptions are intended to protect only the interests of the governmental body, as
distinct from exceptions which are intended to protect information deemed confidential by law or which
implicates the interests of third parties. See Dallas Area Rapid Transit v. Dallas Morning News, 4
S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive section 552.103); Open
Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). Discretionary exceptions,
therefore, do not constitute "other law" that makes information confidential.
The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470
(1987).
We note that the information being released contains social security numbers. Section 552.147(b)
of the Government Code authorizes a governmental body to redact a living person's social security number from
public release without the necessity of requesting a decision from this office under the Act. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |