March 5, 2012

Mr. Pat Y. Spillman

Senior Attorney

TOTAL Petrochemicals

1201 Louisiana Street, Suite 1800

Houston, Texas 77002

OR2012-03306

Dear Mr. Spillman:

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# 447090.

TOTAL Petrochemicals USA, Inc. ("TOTAL Petrochemicals") received a request for the names and mailing addresses of the members of the Col-Tex Community Advisory Panel ("the CAP"). ⁽¹⁾ You claim TOTAL Petrochemicals is not a governmental body subject to the Act. We have considered your argument. We have also received and considered comments from the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released).

You argue that the requested information is not subject to the Act because TOTAL Petrochemicals is not a governmental body. The Act applies to "governmental bodies," as that term is defined in section 552.003(1)(A) of the Government Code. According to that section, a "governmental body" includes

the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds[.]

Gov't Code § 552.003(1)(A)(xii). "Public funds" means funds of the state or of a governmental subdivision of the state. Id. § 552.003(5). The determination of whether an entity is a governmental body for purposes of the Act requires an analysis of the facts surrounding the entity. See Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353, 360-362 (Tex. App.--Waco 1998, pet. denied). Further, in Attorney General Opinion JM-821 (1987), this office concluded that "the primary issue in determining whether certain private entities are governmental bodies under the [predecessor of the] Act is whether they are supported in whole or in part by public funds or whether they expend public funds." Attorney General Opinion JM-821 at 2 (1987).

In this instance, you inform us TOTAL Petrochemicals itself is a for-profit business incorporated in Delaware. You state that while TOTAL Petrochemicals received payments from the Comptroller of Public Accounts, these payments were the result of documented claims by TOTAL of "refunds, royalty payments, accounts receivable balances, and other miscellaneous obligations owed by various vendors and third parties to [TOTAL Petrochemicals] that had escheated, by operation of law, to the state." You next inform us TOTAL Petrochemicals created the CAP as part of its outreach efforts. You state the "purpose of the CAP is to provide a forum for local community members to convey questions, comments, or concerns about activities at [the Col-Tex Superfund site]." You further state TOTAL Petrochemicals did not "receive state funding to establish the CAP, and has not received public funding to carry out meetings or other CAP activities." Accordingly, we determine that neither TOTAL Petrochemicals nor the CAP are supported by public funds. We conclude, therefore, that neither TOTAL Petrochemicals nor the CAP are governmental bodies subject to the Act and they need not comply with the Act's disclosure provisions.

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,

Jonathan Miles

Assistant Attorney General

Open Records Division

JM/em

Ref: ID# 447090

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. As you did not submit a copy of the request, we take our description from your brief.

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