February 20, 2008

Ms. Candice M. De La Garza

Assistant City Attorney

City of Houston

P.O. Box 368

Houston, Texas 77001-0368

OR2008-02325

Dear Ms. De La Garza:

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# 306460.

The City of Houston (the "city") received a request for (1) contracts and agreements relating to the Homebuyer's Assistance Program, Good Neighbor Next Door Program, and the Fourth Ward Project; and (2) information relating to properties receiving down payment assistance through the city during a specified time interval. You claim that some of the requested information is excepted from disclosure under section 552.117 of the Government Code. We have considered the exception you claim and have reviewed the information you submitted. We assume that the city has released any other information that is responsive to this request, to the extent that such information existed when the city received the request. If not, then any such information must be released immediately. ⁽¹⁾ See Gov't Code §§ 552.221, .301, .302; Open Records Decision No. 664 (2000).

We first note, and you acknowledge, that the city did not request this decision within the ten-business-day period prescribed by section 552.301(b) of the Government Code. See Gov't Code § 552.301(b). Therefore, pursuant to section 552.302, the submitted information is presumed to be subject to required public disclosure and must be released, unless there is a compelling reason to withhold any of the information. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App. - Austin 1990, no writ). This statutory presumption can generally be overcome when the information is confidential by law or third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). Because your claim under section 552.117 of the Government Code can provide a compelling reason for non-disclosure, we will address that exception.

Section 552.117(a)(1) excepts from disclosure the home address and telephone number, social security number, and family member information of a current or former official or employee of a governmental body who requests that this information be kept confidential under section 552.024 of the Government Code. See Gov't Code §§ 552.117, .024; Open Records Decision No. 530 at 5 (1989). You state that the submitted information includes the home addresses of two city employees who have elected under section 552.024 to keep their home addresses confidential. We note, however, that the submitted information does not consist of personnel records. Therefore, the information at issue does not fall within the scope of section 552.117 of the Government Code and may not be withheld on that basis. As you claim no other exception to disclosure, all of the submitted information 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 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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/ma

Ref: ID# 306460

Enc: Submitted documents

c: Ms. Veralisa Hunter

5619 Belarbor

Houston, Texas 77033

(w/o enclosures)

Footnotes

1. We note that the Act does not require a governmental body to release information that did not exist when it received a request or create responsive information. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).

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