January 10, 2012

Ms. Susan Fillion

Assistant County Attorney

Harris County Attorney's Office

1019 Congress 15^th Floor

Houston, Texas 77002

OR2012-00451

Dear Ms. Fillion:

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# 442220 (C.A. File No. 11PIA0461).

The Harris County Fire Marshal (the "fire marshal") received a request for information related to a specified case number. You state some of the submitted information has been released. You claim the rest of the submitted information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the information you submitted.

We note, and you acknowledge, the fire marshal did not comply with his ten-business-day deadline under subsection 552.301(b) of the Government Code in requesting this decision. See Gov't Code § 552.301(a), (b). Pursuant to section 552.302 of the Government Code, the submitted information is therefore presumed to be subject to required public disclosure and must be released, unless there is a compelling reason to withhold any of the information. See id. § 552.302; Simmons v. Kuzmich, 166 S.W.3d 342 (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). The fire marshal claims section 552.108 of the Government Code, which is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Gov't Code § 552.007; Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions), 177 at 3 (1977) (statutory predecessor to Gov't Code § 552.108 subject to waiver). The fire marshal's claim under section 552.108 is not a compelling reason for non-disclosure under section 552.302 of the Government Code. In failing to comply with section 552.301 of the Government Code, the fire marshal waived section 552.108 of the Government Code and may not withhold any of the submitted information under that exception. See Open Records Decision No. 586 (1991). Therefore, as the fire marshal claims no other exception to disclosure, the rest of the submitted 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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/em

Ref: ID# 442220

Enc: Submitted documents

c: Requestor

(w/o enclosures)

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