February 16, 2012

Mr. Norbert J. Hart

Deputy City Attorney

City of San Antonio

P.O. Box 839966

San Antonio, Texas 78283

OR2012-02452

Dear Mr. Hart:

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# 445645 (COSA File Nos. W004335-111411 and W004338-111411).

The City of San Antonio (the "city") received two requests from the same requestor for planning commission minutes for a specified date and the Amendment and Resubmittal of Vested Right Application No. 06-12-017. You claim that the requested information is excepted from disclosure under sections 552.103 and 552.107 of the Government Code. We have considered the exceptions you claim.

We must address the city's obligations under the Act. Section 552.301 of the Government Code describes the procedural obligations placed on a governmental body that receives a written request for information it wishes to withhold. Pursuant to section 552.301(b) of the Government Code, the governmental body must request a ruling from this office and state the exceptions to disclosure that apply within ten business days after receiving the request. See Gov't Code § 552.301(b). Pursuant to section 552.301(e) of the Government Code, a governmental body is required to submit to this office within fifteen business days of receiving the request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. See id. § 552.301(e). We note the city received the requests on November 14, 2011. You inform us the city was closed November 24 and 25 for city holidays. You state the city sent a letter to the requestor seeking clarification of the request on November 28, 2011. See id. § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information); see also City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010) (holding when a governmental entity, acting in good faith, requests clarification or narrowing of an unclear or overbroad 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). However, upon review, we find the letter sent to the requestor did not seek clarification of the information requested but rather asked the requestor to withdraw her request. Thus, we find the city's deadlines were not tolled. Accordingly, the city's ten- and fifteen-business-day deadlines were November 30, 2011 and December 7, 2011, respectively. However, the city did not request a ruling from this office until December 12, 2011. Further, as of the date of this letter, you have not submitted for our review a copy or representative sample of the information requested. Consequently, we find the city failed to comply with the requirements of section 552.301.

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 requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 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, 381-81 (Tex. App.--Austin 1990, no writ); Open Records Decision No. 319 (1982). Although you raise sections 552.103 and 552.107 of the Government Code, these are discretionary exceptions to disclosure that protect a governmental body's interests and may be waived. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decisions Nos. 676 at 12 (2002) (claim of attorney-client privilege under section 552.107 does not provide compelling reason to withhold information under section 552.302 if it does not implicate third-party rights), 665 at 2 n.5 (2000) (discretionary exceptions in general), 663 at 5 (1999) (waiver of discretionary exceptions), 630 at 4 (1994) (governmental body may waive attorney-client privilege). Thus, the city's claims under sections 552.103 and 552.107 are not compelling reasons to overcome the presumption of openness. Therefore, the city may not withhold any of the requested information under section 552.103 or section 552.107. Thus, we have no choice but to order the city to release the requested information to the requestor pursuant to section 552.302 of the Government Code.

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,

Sarah Casterline

Assistant Attorney General

Open Records Division

SEC/ag

Ref: ID# 445645

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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