February 1, 2010

Mr. Gary Henrichson

Assistant City Attorney

City of McAllen

P.O. Box 220

McAllen, Texas 78505-0220

OR2010-01474

Dear Mr. Henrichson:

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# 368914 (ORR No. W001530-110309).

The City of McAllen (the "city") received a request for the city's policy on the eligibility of certain elected officials for the city's employee benefits plans. You state the city has released specific city commission meeting minutes and city charters to the requestor. You claim certain information is excepted from disclosure under section 552.101 of the Government Code. ⁽¹⁾

Section 552.301 of the Government Code describes the procedural obligations placed on a governmental body that receives a written request for information it wishes to withhold. Pursuant to section 552.301(e) of the Government Code, the governmental body is required to submit to this office within fifteen business days of receiving the request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) 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). As of the date of this letter, you have not submitted to this office a copy or representative sample of the requested city policies for our review. Thus, we find the city failed to comply with the requirements of section 552.301.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption the requested information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See 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 of the Government Code); 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. Open Records Decision No. 150 at 2 (1977). Although section 552.101 can provide a compelling reason to overcome the presumption of openness, you have not submitted the requested policies for our review. Therefore, we have no basis for finding the requested policies confidential. Thus, to the extent the requested policies have not been released, they must be released at this time. If you believe the requested policies are confidential and may not lawfully be released, you must challenge this ruling in court pursuant to section 552.324 of the Government Code.

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,

Jessica Eales

Assistant Attorney General

Open Records Division

JCE/dls

Ref: ID# 368914

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note you seek to withhold the health insurance coverage information of certain elected officials. The request, however, is for the city's policy regarding these officials' eligibility for benefits. You have not provided any information showing the requestor amended his request to include health insurance coverage information. This ruling addresses only the public availability of the requested city policies.

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