 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 22, 2009 Mr. Mike Penry Bridgehaven Children's Advocacy Center P.O. Box 220 Dayton, Texas 77535 OR2009-00875 Dear Mr. Penry: 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# 333099. The Bridgehaven Children's Advocacy Center (the "center") received a request for ten categories of information pertaining to the finances and governance of the center for specified time periods. You claim that portions of the submitted information are excepted from disclosure under sections 552.101 and 552.136 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. (1) Initially, we note that you have only submitted information responsive to the requests for a list of donations to the center and the bank statements of the center. To the extent any information responsive to the additional categories of the instant request existed on the date the center received the request, we assume you have released it. If you have not released any such information to the requestor, you must do so at this time. See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible). You contend that the identifying information of the center's donors is excepted from disclosure under section 552.101 in conjunction with the holding of the Texas Supreme Court in In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (Tex. 1998). (2) In that decision, the Texas Supreme Court determined that the First Amendment right to freedom of association could protect an advocacy organization's list of contributors from compelled disclosure through a discovery request in pending litigation. In reaching this conclusion, the court stated: Freedom of association for the purpose of advancing ideas and airing grievances is a fundamental liberty guaranteed by the First Amendment. NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Compelled disclosure of the identities of an organization's members or contributors may have a chilling effect on the organization's contributors as well as on the organization's own activity. See Buckley v. Valeo, 424 U.S. 1, 66-68, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). For this reason, the First Amendment requires that a compelling state interest be shown before a court may order disclosure of membership in an organization engaged in the advocacy of particular beliefs. Tilton, 869 S.W.2d at 956 (citing NAACP, 357 U.S. at 462-63, 78 S.Ct. 1163). "'[I]t is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.'" Id. Bay Area Citizens, 982 S.W.2d at 375-76 (footnote omitted). The court held that the party resisting disclosure bears the initial burden of making a prima facie showing that disclosure will burden First Amendment rights but noted that "the burden must be light." Id. at 376. Quoting the United State Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 74 (1976), the Texas court determined that the party resisting disclosure must show "a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties." Id. Such proof may include "specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself." Id. We believe the term "contributor" encompasses both the identities of those individuals and corporations who make financial donations to the center and volunteers who donate their time and services to the center. However, we note that the term "contributor" does not encompass members of the center's governing board. See generally Gov't Code § 552.022(a)(2). In addition, Bay Area Citizens does not make confidential information pertaining to the donations themselves, such as the amount donated or types of donations. See Bay Area Citizens, 982 S.W.2d at 376-77 (only the names of contributors were at issue). We emphasize that information must be withheld on this basis only to the extent reasonable and necessary to protect the identity of the contributor. Having considered your arguments and the submitted information, we find that the disclosure of the identities of the center's contributors, which you have highlighted, will burden First Amendment rights of freedom of association. Therefore, we agree the center must withhold the highlighted identities of the center's donors under section 552.101 pursuant to the right of association. We next address your argument under section 552.136 of the Government Code, which provides as follows: (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. Gov't Code § 552.136. You contend that the bank account numbers you have highlighted are subject to section 552.136. We agree that the information you have highlighted, along with the additional information we have marked in the submitted bank statement, is confidential and must be withheld under section 552.136 of the Government Code. Finally, we note that the submitted bank statement contains Texas driver's license numbers, which are excepted from disclosure under section 552.130 of the Government Code. (3) Section 552.130 provides that information relating to a motor vehicle operator's license or driver's license issued by a Texas agency is excepted from public release. Id. § 552.130(a)(1). The center must withhold the Texas driver's license numbers we have marked under section 552.130 of the Government Code. In summary, the center must withhold the highlighted identities of its donors under section 552.101 of the Government Code pursuant to the right of association. The center must also withhold the information you have highlighted, as well as the additional information we have marked, under section 552.136 of the Government Code. The center must also withhold the information we have marked under section 552.130 of the Government Code. The remaining information must be released to the requestor. This letter ruling is limited to the particular information 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 information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General at (512) 475-2497. Sincerely, Laura E. Ream Assistant Attorney General Open Records Division LER/jb Ref: ID# 333099 Enc. Submitted documents cc: Requestor (w/o enclosures)
1. 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.
Section 552.101 of the Government Code excepts from disclosure "information considered to be
confidential by law, either constitutional, statutory, or by judicial decision" and encompasses information made
confidential by constitutional law or judicial decision. Gov't Code § 552.101.
3. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |