January 13, 2010

Ms. Robin King

Custodian of Records

Kaufman County Sheriff's Office

1900 East US Highway 175

Kaufman, Texas 75142

OR2010-00644

Dear Ms. King:

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# 367344.

The Kaufman County Sheriff's Office (the "sheriff") received a request for information pertaining to the sheriff's hiring decision regarding the requestor. You claim the submitted information is not subject to the Act. Alternatively, you claim the submitted information is excepted from disclosure under section 552.122 of the Government Code. We have considered your arguments and reviewed the submitted information.

Initially, we address your assertion that the submitted employment application is not subject to the Act. The Act is applicable to "public information." See Gov't Code § 552.021. Section 552.002(a) defines public information as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." Id. § 552.022(a). In support of your assertion you raise Open Records Decision 455 (1987), which you state concludes that "the Open Records does not apply to applications for employment." However, Open Records Decision 455 pertained to the application of privacy rules to certain governmental employees' personal information and did not address nor conclude whether employment applications were subject to the Act. Id. Further, in this instance, the application at issue was collected and maintained by the sheriff in connection with the transaction of official business. Accordingly, the submitted information constitutes "public information" as defined by section 552.002(a) of the Government Code and is subject to the Act.

We next address your argument that the submitted information is confidential based on an agreement between the sheriff and the applicant, who is the requestor. We note that information is not confidential under the Act simply because the party that submits the information anticipates or requests that it be kept confidential. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976). In other words, a governmental body cannot overrule or repeal provisions of the Act through an agreement or contract. See Attorney General Opinion JM-672 (1987); Open Records Decision Nos. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the Act] cannot be compromised simply by its decision to enter into a contract."), 203 at 1 (1978) (mere expectation of confidentiality by person supplying information does not satisfy requirements of statutory predecessor to section 552.110). Consequently, unless the information at issue falls within an exception to disclosure, it must be released, notwithstanding any expectation or agreement to the contrary.

Next, we must address the sheriff's obligations under section 552.301 of the Government Code, which prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(e), a governmental body must submit to this office within fifteen business days of receiving an open records request a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. See Gov't Code § 552.301(e)(1)(D). You inform us that the sheriff received the request for information on October 26, 2009. Thus, the sheriff's fifteen-business-day deadline was November 17, 2009. However, the sheriff did not submit any responsive information until November 25, 2009. Consequently, we find the sheriff failed to comply with the procedural requirements of section 552.301.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the requirements of section 552.301 results in the legal presumption the requested information is public and must be released unless a compelling reason exists to withhold the information from disclosure. See id. § 552.302; City of Dallas v. Abbott, 279 S.W.3d 806, 811 (Tex. App.--Amarillo 2007, pet. granted); Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.--Fort Worth 2005, no pet.); 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); see also Open Records Decision No. 630 (1994). Generally, a compelling reason to withhold information exists where some other source of law makes the information confidential or where third party interests are at stake. See Open Records Decision No. 150 at 2 (1977). You seek to withhold the submitted information under section 552.122 of the Government Code. However, section 552.122 is a discretionary exception under the Act and does not demonstrate a compelling reason to withhold information from the public. See Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions in general). Thus, your claim under section 552.122 of the Government Code does not provide a compelling reason for non-disclosure, and none of the submitted information may be withheld on that basis. However, we note some of the submitted information may be subject to section 552.1175 of the Government Code, which can provide a compelling reason for non-disclosure under section 552.302. ⁽¹⁾

Section 552.1175 provides in part:

(b) Information that relates to the home address, home telephone number, or social security number of [a peace officer as defined by article 2.12 of the Code of Criminal Procedure], or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates:

(1) chooses to restrict public access to the information; and

(2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status.

Gov't Code § 552.1175(b). The submitted information includes the home addresses and home telephone numbers of peace officers who are not employees of the sheriff. To the extent these individuals are currently licensed peace officers who elect to restrict public access to their personal information in accordance with section 552.1175(b), the sheriff must withhold the information we have marked under section 552.1175. To the extent the individuals at issue are not currently licensed peace officers or do not elect to restrict public access to their personal information, the sheriff may not withhold the information we have marked under section 552.1175. As you claim no further exceptions to disclosure, the remaining information must be released to the requestor. ⁽²⁾

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, toll free, at (888) 672-6787.

Sincerely,

Amy L.S. Shipp

Assistant Attorney General

Open Records Division

ALS/rl

Ref: ID# 367344

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

1. 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).

2. We note the information being released contains information that would be excepted from disclosure to the general public under laws and exceptions designed to protect privacy. However, as the individual to whom the information pertains, the requestor has a special right of access to this information. See Gov't Code § 552.023(b) (governmental body may not deny access to person to whom information relates or that person's representative, solely on grounds that information is considered confidential by privacy principles). If the sheriff receives another request for this information from a person who would not have a special right of access, the sheriff should resubmit this same information and request another decision. See id. §§ 552.301(a), .302; Open Records Decision No. 673 (2001).

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