March 29, 2011

Ms. Jennifer C. Cohen

Assistant General Counsel

Texas Department of Public Safety

P.O. Box 4087

Austin, Texas 78773-0001

OR2011-04329

Dear Ms. Cohen:

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# 412735 (DPS ORA# 11-0091).

The Texas Department of Public Safety (the "department") received a request for information relating to the "holiday D[riving] W[hile] I[notixcated] enforcement activities" for a specified time period, specifically, the expenses involved in the operation, the total number of law enforcement personnel on duty, the amount of citations issued at check-points, and the total number of arrests made during the operation. You state the department has provided the requestor with the number of arrests made. You state the department does not use checkpoints, thus you have no information responsive to this portion of the request. ⁽¹⁾ You claim that the total number of law enforcement personnel on duty is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

You indicate the department sought clarification of the portion of the request for information regarding expense information. See Gov't Code § 552.222(b) (stating that if information requested is unclear to governmental body or if a large amount of information 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). There is no indication that the department has received clarification of the portion of the request at issue. Thus, for the portion of the requested information for which you have not received clarification, we find the department is not required to release information in response to that portion of the request. However, if the requestor clarifies that portion of the request for information, the department must seek a ruling from this office before withholding any responsive information from the requestor. See City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex. 2010).

Next, you acknowledge and we agree that the department did not comply with its fifteen business-day deadline under section 552.301 of the Government Code in requesting this decision. Gov't Code § 552.301(e). Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. Id. § 552.302; 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 (Tex. App.--Austin 1990, no writ). This statutory presumption can generally be overcome when information is confidential by law or third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). Because the department's claim under section 552.101 of the Government Code can provide a compelling reason for non-disclosure under section 552.302, we will address your argument under that exception.

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. This section encompasses information protected by other statutes, such as section 418.176 of the Texas Homeland Security Act (the "HSA"), chapter 418 of the Government Code. Section 418.176 provides in relevant part:

(a) Information is confidential if the information is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity and:

(1) relates to the staffing requirements of an emergency response provider, including a law enforcement agency, a fire-fighting agency, or an emergency services agency[.]

Id. § 418.176(a)(1). The fact that information may generally be related to emergency preparedness does not make the information per se confidential under the provisions of the HSA. See Open Records Decision No. 649 at 3 (1996) (language of confidentiality provisions controls scope of its protection). Furthermore, the mere recitation by a governmental body of a statute's key terms is not sufficient to demonstrate the applicability of a claimed provision. As with any confidentiality statute, a governmental body asserting this section must adequately explain how the responsive information falls within the scope of the provision. See Gov't Code § 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies).

You assert the submitted information relates to staffing requirements of the department, a law enforcement agency. You state the department "has a stated goal to combat terrorism and crime," and explain the submitted information reveals the number of department troopers, which is "determined by evaluating the need for law enforcement agents at that time." We note the submitted information pertains to department operations conducted to prevent, detect, or respond to the offenses of driving while intoxicated or driving under the influence. Thus, we find you have failed to demonstrate how the submitted information is collected, assembled, or maintained for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity. Therefore, we conclude the department may not withhold this information under section 552.101 in conjunction with section 418.176 of the Government Code. As you raise no other exceptions, we find the department must release the submitted information.

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,

Lindsay E. Hale

Assistant Attorney General

Open Records Division

LEH/em

Ref: ID# 412735

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Act does not require a governmental body to release information that did not exist when it received a request. 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), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).

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