June 22, 2011

Mr. Jimmy McCurry

Public Information Officer

City of Olton

P.O. Box 1087

Olton, Texas 79064-1087

OR2011-08906

Dear Mr. McCurry:

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# 421418.

The City of Olton (the "city") received a request for all city credit card statements and all transactions between the city and Tyre King from January 1, 2010 to December 31, 2010. ⁽¹⁾ You state the city will release some of the responsive information to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.102, 552.117, 552.136, and 552.147 of the Government Code. ⁽²⁾ Additionally, you state release of this information may implicate the proprietary interests of Tyre King. Accordingly, you have notified Tyre King of the request and of its right to submit arguments to this office as to why its information should not be released. See Gov't Code § 552.305(d) (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permitted governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under certain circumstances). We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽³⁾

Initially, you state the city does not issue its employees credit cards and therefore does not have information pertaining to credit cards issued to the city. We note that in responding to a request for information under the Act, a governmental body is not required to disclose information that did not exist at the time 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). Nevertheless, you have submitted information the city seeks to withhold from the requestor. We note a governmental body must make a good-faith effort to relate a request to information held by the governmental body. See Open Records Decision No. 561 at 8 (1990). Thus, as you have submitted information the city deems to be responsive to this portion of the request, we will address the public availability of the submitted information.

Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses the common-law right of privacy, which protects information that is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. See id. at 681-82. Personal financial information that relates only to an individual ordinarily satisfies the first element of the common-law privacy test, but the public has a legitimate interest in the essential facts about a financial transaction between an individual and a governmental body. See Open Records Decision Nos. 545 at 4 (1990) (attorney general has found kinds of financial information not excepted from public disclosure by common-law privacy to generally be those regarding receipt of governmental funds or debts owed to governmental entities), 523 at 4 (1989) (noting distinction under common-law privacy between confidential background financial information furnished to public body about individual and basic facts regarding particular financial transaction between individual and public body), 373 at 4 (1983) (determination of whether public's interest in obtaining personal financial information is sufficient to justify its disclosure must be made on case-by-case basis). Upon review, we find most of the submitted information to be highly intimate or embarrassing and not of legitimate public interest. Accordingly, the city must withhold the submitted information, except as we have marked for release, under section 552.101 in conjunction with common-law privacy. ⁽⁴⁾ We note the remaining information relates to the city's reimbursement of a city employee for certain expenditures, which is a matter of legitimate public interest. As you raise no further exceptions to disclosure for the information we have marked for release, this information must be released to the requestor.

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,

Vanessa Burgess

Assistant Attorney General

Open Records Division

VB/dls

Ref: ID# 421418

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Tyre King Recycling

1100 East 34^th Street

Plainview Texas 79072

(w/o enclosures)

Footnotes

1. You note that the city sought and received clarification of the information requested. See Gov't Code § 552.222 (providing that if request for information is unclear, governmental body may ask requestor to clarify request); see also City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex. 2010) (holding that when a governmental entity, acting in good faith, requests clarification or narrowing of an unclear or over-broad request for public information, the ten-day period to request an attorney general ruling is measured from the date the request is clarified or narrowed).

2. Although you raise also section 552.136 of the Government Code for social security numbers, we note section 552.136 does not encompass social security numbers. Accordingly, we will consider the applicability of section 552.147 of the Government Code, as this is the proper exception to raise based on the substance of your argument.

3. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

4. As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.

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