March 17, 2011

Ms. Allyson Collins

Coordinator, Records & Legal Services

Eanes Independent School District

601 Camp Craft Road

Austin, Texas 78746

OR2011-03727

Dear Ms. Collins:

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# 411416 (Eanes ISD #3087).

The Eanes Independent School District (the "district") received a request for all e-mails sent, received, or deleted by a named school board trustee, using any e-mail address, in which she identifies herself as a district board member or discusses the district. ⁽¹⁾ You state that some information will be provided to the requestor. The board member asserts that the remaining information is not subject to the Act. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released). We have considered the board member's arguments and reviewed the submitted information.

The board member asserts that the submitted information is not public information subject to the Act. The Act applies only to "public information." See id. § 552.021. Section 552.002 of the Government Code 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. § 552.002(a). Thus, under this provision, information is generally "public information" within the scope of the Act when it relates to the official business of a governmental body or is maintained by a public official or employee in the performance of official duties. The board member contends that the information at issue is not related to official business, but is instead "information created in a public officeholder's personal e-mail account for campaign and personal political purposes[.]" The submitted e-mails relate to an upcoming bond election in the district. In the majority of the e-mails, the board member, in her official capacity, discusses with district residents her position on the bond and what items the board should include in the bond proposal. In the remaining e-mails, the board member identifies herself as a board member and uses her official signature block in requesting that a local organization not use its e-mail list to communicate regarding the bond election. Upon review, we find that the submitted e-mails were created and are maintained by the board member in her capacity as a district official. See Gov't Code § 552.002(a); see also Open Records Decision No. 635 (1995) at 6-8 (stating information maintained on a privately-owned medium and actually used in connection with the transaction of official business would be subject to the Act); 425 (1985) (concluding, among other things, that information sent to individual school trustees' homes was public information because it related to official business of governmental body) (overruled on other grounds by Open Records Decision No. 439 (1986)). Accordingly, we find that the information at issue is subject to the Act and may only be withheld from disclosure if an exception under the Act applies.

We note that portions of the submitted information are subject to section 552.117. ⁽²⁾ Section 552.117 of the Government Code excepts from disclosure the home address and telephone number, social security number, and family member information of a current or former official or employee of a governmental body who requests this information be kept confidential pursuant to section 552.024. See Gov't Code §§ 552.117(a)(1), .024(b). Whether a particular item of information is protected by section 552.117(a)(1) must be determined at the time the governmental body receives the request for the information. See Open Records Decision No. 530 at 5 (1989). Thus, information may only be withheld under section 552.117(a)(1) on behalf of a current or former official or employee who made a request for confidentiality under section 552.024 prior to the date of the governmental body's receipt of the request for the information. We have marked the information that is subject to section 552.117. If the board member timely requested confidentiality for her personal information under section 552.024, then the district must withhold it under section 552.117(a)(1). If the board member did not timely elect to withhold her personal information, then the district may not withhold the information marked under section 552.117(a)(1) of the Government Code.

We next note that portions of the submitted information are subject to section 552.137. Section 552.137 provides that "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under [the Act]," unless the owner of the e-mail address has affirmatively consented to its release or the e-mail address is specifically excluded by subsection (c). Gov't Code § 552.137(a)-(c). Upon review, we find the e-mail addresses we have marked are not the type excluded by section 552.137(c). Accordingly, the district must withhold the e-mail addresses we have marked under section 552.137(a), unless their owners have consented to their release. ⁽³⁾

In summary, the district must withhold the information we have marked under section 552.117, to the extent the board member timely requested confidentiality for this information under section 552.024. The district must also withhold the e-mail addresses we have marked under section 552.137, unless their owners have consented to their release. The remaining information must be released.

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,

Misty Haberer Barham

Assistant Attorney General

Open Records Division

MHB/eeg

Ref: ID # 411416

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. You state, and provide documentation showing, that the district sought and received clarification of the request. See Gov't Code § 552.222(b) (stating that if information requested is unclear or if large amount has been requested, governmental body may ask requestor to clarify or narrow request, but may not inquire into purpose for which information will be used).

2. The Office of the Attorney General will raise mandatory exceptions on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

3. We note that Open Records Decision No. 684 (2009) is a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including e-mail addresses of members of the public under section 552.137, without the necessity of requesting an attorney general decision.

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