March 10, 2008

Mr. John Danner

Assistant City Attorney

City of San Antonio

P.O. Box 839966

San Antonio, Texas 78283

OR2008-03163

Dear Mr. Danner:

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# 304415.

The City of San Antonio (the "city") received a request for information relating to complaints involving property at two specified locations. You claim that the requested information is excepted from disclosure under sections 552.101, 552.102, 552.103, 552.104, 552.105, 552.106, 552.107, 552.108, 552.109, 552.110, 552.111, 552.115, 552.116, 552.117, 552.1175, 552.118, 552.119, 552.122, 552.128, 552.130, 552.136, 552.137, 552.139, and 552.140 of the Government Code. ⁽¹⁾

Section 552.301 of the Government Code prescribes procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Section 552.301(e) requires the governmental body to submit to this office, not later than the fifteenth business day after the date of its receipt of the request, (1) written comments stating why the governmental body's claimed exceptions apply to the information that it seeks to withhold; (2) a copy of the written request for information; (3) a signed statement of the date on which the governmental body received the request or evidence sufficient to establish that date; and (4) the specific information that the governmental body seeks to withhold or representative samples if the information is voluminous. See Gov't Code § 552.301(e)(1)(A)-(D). If a governmental body fails to comply with section 552.301, the requested 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).

As of the date of this decision, this office has not received either any arguments in support of the city's claimed exceptions to disclosure or any of the information, or a representative sample of any information, that the city seeks to withhold. Therefore, because the city has not complied with section 552.301 in requesting this decision, the requested information is presumed to be public under section 552.302. 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). Sections 552.103, 552.104, 552.105, 552.106, 552.107, 552.108, 552.111, 552.116, and 552.122 of the Government Code are discretionary exceptions to disclosure that protect a governmental body's interests and may be waived. See Gov't Code § 552.007; 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 Gov't Code § 552.103); Open Record Decision Nos. 665 at 2 n.5 (discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions). In failing to comply with section 552.301, the city has waived all of its discretionary exceptions and may not withhold any of the requested information under sections 552.103, 552.104, 552.105, 552.106, 552.107, 552.108, 552.111, 552.116, or 552.122. The city also raises sections 552.101, 552.102, 552.109, 552.110, 552.115, 552.117, 552.1175, 552.118, 552.119, 552.128, 552.130, 552.136, 552.137, 552.139, and 552.140 of the Government Code, whose applicability can provide a compelling reason for non-disclosure under section 552.302. However, you have not submitted any information that the city seeks to withhold, and thus we have no basis for concluding that there is any compelling reason to withhold any such information under sections 552.101, 552.102, 552.109, 552.110, 552.115, 552.117, 552.1175, 552.118, 552.119, 552.128, 552.130, 552.136, 552.137, 552.139, or 552.140. Therefore, we have no choice but to order you to release the requested information. If you believe that any of the information is confidential and may not lawfully be released, you must challenge this ruling in court as outlined below.

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# 304415

c: Mr. Seymour Perkins

P.O. Box 200774

San Antonio, Texas 78220-0774

Footnotes

1. We note that the city also raises sections 552.026 and 552.114 of the Government Code. Section 552.026 incorporates into the Act the federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), section 1232g of title 20 of the United States Code. Section 552.114 excepts "student records" from public disclosure. See Open Records Decision No. 539 (1990) (same analysis applies under Gov't Code § 552.114 and FERPA). The United States Department of Education Family Policy Compliance Office (the "DOE") has informed this office that FERPA does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act. The DOE has determined that FERPA determinations must be made by the educational authority in possession of the education records. We have posted a copy of the DOE's letter to this office on the Attorney General's website: http://www.oag.state.tx.us/opinopen/og_resources.shtml. We note that the city is not an educational agency or institution for the purposes of FERPA. We also note that this request for information does not appear to encompass any information that would fall within the scope of FERPA. Accordingly, this decision does not address the applicability of sections 552.026 and 552.114 of the Government Code.

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