September 28, 2010

Ms. Susan Denmon Banowsky

Vinson & Elkins

2801 Via Fortuna, Suite 100

Austin, Texas 78746-7568

OR2010-14760

Dear Ms. Banowsky:

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# 395026.

The Texas FAIR Plan Insurance Association (the "association"), which you represent, received a request for information regarding the procurement of insurance by a named individual and two other possible property owners, including insurance applications, declarations, policies, claims, investigations, and cancellation notices for seven specified properties. You state the association has no information pertaining to five of the specified properties. ⁽¹⁾ You state the association is withholding portions of the submitted information that are subject to sections 552.136 and 552.137 of the Government Code pursuant to Open Records Decision No. 684 (2009). ⁽²⁾ You claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. You state you have notified the named individual of the request and of her right to submit arguments to this office as to why the requested information should not be released. See Gov't Code § 552.304 (any person may submit written comments stating why information at issue in request for Attorney General ruling should or should not be released). We have considered the exception you claim and reviewed the submitted information.

Initially, we note a portion of the submitted information, which we have marked, is not responsive to the instant request for information because it does not pertain to the specified individuals or properties. This ruling does not address the public availability of any information that is not responsive to the request and the association is not required to release that information in response to the request.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. You assert the submitted information is excepted from public disclosure under section 552.101 in conjunction with the Gramm-Leach-Bliley Act (the "GLB Act"). See 15 U.S.C. § 6801 et seq. The Federal Financial Modernization Act, also known as the GLB Act, became law in November 1999. The purpose of the GLB Act is to promote competition in the financial services industry. See H.R. Conf. Rep. No. 106-434, at 245 (1999), reprinted in 1999 U.S.C.C.A.N. 245, 245. Reflecting Congressional concern regarding the dissemination of consumers' personal financial information, the GLB Act provides certain privacy protections "to protect the security and confidentiality of [consumers'] nonpublic personal information." 15 U.S.C. § 6801(a). The statute defines nonpublic personal information ("NPI") as "personally identifiable financial information ["PIFI"] - (i) provided by a consumer to a financial institution; (ii) resulting from any transaction with the consumer or any service performed for the consumer; or (iii) otherwise obtained by the financial institution." Id. § 6809(4)(A). Federal regulations define PIFI as

any information: (i) [a] consumer provides to [a regulated financial institution] to obtain a financial product or service . . .; (ii) [a]bout a consumer resulting from any transaction involving a financial product or service between [a regulated financial institution] and a consumer; or (iii) [a regulated financial institution] otherwise obtain[s] about a consumer in connection with providing a financial product or service to that consumer.

16 C.F.R. § 313.3(o)(1). Sections 6802(a) and (b) of title 15 of the United States Code provide in pertinent part as follows:

(a) Notice requirements

Except as otherwise provided in this subchapter, a financial institution may not, directly or through any affiliate, disclose to a nonaffiliated third party any nonpublic personal information, unless such financial institution provides or has provided to the consumer a notice that complies with section 6803 of this title.

(b) Opt out

(1) In general a financial institution may not disclose nonpublic personal information to a nonaffiliated third party unless--

(A) such financial institution clearly and conspicuously discloses to the consumer, in writing or in electronic form or other form permitted by the regulations prescribed under section 6804 of this title, that such information may be disclosed to such third party;

(B) the consumer is given the opportunity, before the time that such information is initially disclosed, to direct that such information not be disclosed to such third party; and

(C) the consumer is given an explanation of how the consumer can exercise that nondisclosure option.

15 U.S.C. § 6802(a), (b). "Nonaffiliated third party" is defined as "any entity that is not an affiliate of, or related by common ownership or affiliated by corporate control with, the financial institution, but does not include a joint employee of such institution." Id. § 6809(5). Additionally, section 22.14 of title 28 of the Texas Administrative Code, which was promulgated in accordance with section 601.051 of the Code of Insurance, provides as follows:

(a) Conditions for disclosure. Except as otherwise authorized in this subchapter, a covered entity may not, directly or through any affiliate, disclose any nonpublic personal financial information about a consumer to a nonaffiliated third party unless:

(1) the covered entity has provided to the consumer an initial notice as required under § 22.8 of this title (relating to Initial Privacy Notice);

(2) the covered entity has provided to the consumer an opt out notice as required in § 22.11 of this title (relating to Form of Opt Out Notice to Consumers and Opt Out Methods);

(3) the covered entity has given the consumer a reasonable opportunity, before it discloses the information to the nonaffiliated third party, to opt out of the disclosure; and

(4) the consumer does not opt out.

28 T.A.C. § 22.14(a); see also Ins. Code § 601.051 (authorizing, in part, adoption of rules to carry out GLB Act). Section 6809(3)(A) of title 15 of the United States Code defines financial institution as "any institution the business of which is engaging in financial activities as described in section 1843(k) of Title 12." 15 U.S.C. § 6809(3)(A). Section 1843(k)(4)(b) of title 12 defines the following activity as financial in nature: "Insuring, guaranteeing, or indemnifying against loss, harm, damage, illness, disability, or death, or providing and issuing annuities, and acting as principal, agent, or broker for purposes of the foregoing, in any State." 12 U.S.C. § 1843(k)(4)(B).

You explain the association is a nonprofit organization that is authorized to issue residential property insurance to qualified Texas citizens in underserved areas of the state, distributing the losses and expenses in writing that insurance. We agree the association is a financial institution for purposes of the GLB Act. We understand the association is regulated by the Texas Department of Insurance. We also understand the requestor is a non-affiliated third party. See 15 U.S.C. § 6809(5).

You seek to withhold the submitted information under the GLB Act and chapter 22 of title 28 of the Texas Administrative Code. You state the submitted information consists of individual policyholder insurance files, and includes addresses, telephone numbers, mortgage information, liability limits, coverage amounts, premium information, claim information, and claim amounts, as well as other financial information, such as valuations, depreciation, and deductible payments. You state the submitted information was provided to the association for the purpose of obtaining insurance, and is also information resulting from transactions with insureds or services performed for insureds by the association, a regulated financial institution. See 15 U.S.C. § 6809(4)(A), 16 C.F.R. § 313.3(o)(1). You do not indicate the association provided opt out notices to the insureds. Because the names, addresses, telephone numbers, and social security numbers were provided to the association by the insureds in order to obtain a service, this information falls under the definition of PIFI. See generally Individual Reference Services Group, Inc. v. Fed. Trade Comm'n, 145 F. Supp.2d 6, 26-31 (D.D.C. 2001) (discussing language, structure, and history of GLB Act to determine whether certain information meets definition of PIFI). Based on your representations and our review, we generally determine the association is prohibited by section 6802(a) and (b) of title 15 of the United States Code and section 22.14(a) of title 28 of the Texas Administrative Code from releasing the insureds' names, addresses, telephone numbers, and social security numbers. We note, however, that the request in this instance identifies the insureds whose records are at issue. Therefore, only redacting the insureds' PIFI from the information at issue would not protect these insureds' identities. Accordingly, in order to effectuate the intent of the GLB Act in this instance, the association must withhold the entirety of the submitted information under section 552.101 in conjunction with the GLB Act. ⁽³⁾

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,

Tamara H. Holland

Assistant Attorney General

Open Records Division

THH/em

Ref: ID# 395026

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Act does not require a governmental body that receives a request for information to create information that did not exist when the request was received. 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), 563 at 8 (1990), 555 at 1-2 (1990), 452 at 3 (1986), 362 at 2 (1983).

2. Our office recently issued Open Records Decision No. 684, a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including insurance policy numbers, bank account numbers, and credit card charge numbers under section 552.136 of the Government Code and e-mail addresses of members of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

3. As our ruling is dispositive, we need not address your remaining argument.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer