March 14, 2012

Ms. Liz Goins

Assistant General Counsel

Texas Department of Public Safety

P.O. Box 4087

Austin, Texas 78773-0001

OR2012-03791

Dear Ms. Goins:

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# 447746 (PIR # 11-3285).

The Texas Department of Public Safety (the "department") received a request for a copy of three specified source documents for a specified independent study. You claim the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information, a portion of which we understand to be a representative sample. ⁽¹⁾

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. You raise section 552.101 in conjunction with provisions of the Texas Homeland Security Act (the "HSA"), chapter 418 of the Government Code. Sections 418.176 and 418.177 were added to chapter 418 as part of the HSA. These provisions make certain information related to terrorism confidential. Section 418.176 provides in 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;

(2) relates to a tactical plan of the provider; or

(3) consists of a list or compilation of pager or telephone numbers, including mobile and cellular telephone numbers, of the provider.

Id. § 418.176(a). Section 418.177 provides that information is confidential if it:

(1) is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, or investigating an act of terrorism or related criminal activity; and

(2) relates to an assessment by or for a governmental entity, or an assessment that is maintained by a governmental entity, of the risk or vulnerability of persons or property, including critical infrastructure, to an act of terrorism or related criminal activity.

Id. § 418.177. The fact that information may be related to a governmental body's emergency response preparedness or security concerns does not make such information per se confidential under the HSA. See Open Records Decision No. 649 at 3 (1996) (language of confidentiality provision 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 exception to disclosure, a governmental body asserting one of the confidentiality provisions of the HSA must adequately explain how the responsive records fall within the scope of the claimed provision. See Gov't Code § 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies).

You state the information in Attachments D, E, and F consists of strategic operations developed by the department for the purpose of providing border security and includes the staffing requirements and tactical plans for carrying out these operations. Based on your representations and our review, we find the information in Attachments D, E, and F relates to the department's staffing requirements or tactical plans and is maintained for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity. Accordingly, the department must withhold Attachments D, E, and F under section 552.101 of the Government Code in conjunction with section 418.176 of the Government Code. ⁽²⁾

You state the information in Attachment A contains information concerning how the department would respond in emergency crisis situations, including details regarding threat monitoring and alert systems. You state the information in Attachment B contains strategic and operational plans regarding border security and identifies and assesses the possible risks and vulnerabilities to threats of terrorism and other criminal activity. You assert release of the information at issue would provide terrorists and other criminals with internal law enforcement information regarding border security strategy and would enable them to bypass the department's safeguards and avoid detection. Based on your representations and our review, we find the information in Attachments A and B relates to an assessment of the vulnerabilities of persons or property to an act of terrorism or related criminal activity and is maintained by the department for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity. Accordingly, the department must withhold Attachments A and B under section 552.101 of the Government Code in conjunction with section 418.177 of the Government Code. ⁽³⁾

In summary, the department must withhold Attachments D, E, and F under section 552.101 of the Government Code in conjunction with section 418.176 of the Government Code. The department must withhold Attachments A and B under section 552.101 of the Government Code in conjunction with section 418.177 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,

Sean Nottingham

Assistant Attorney General

Open Records Division

SN/ag

Ref: ID# 447746

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume the sample records submitted to this office are 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 those records contain substantially different types of information than that submitted to this office.

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

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

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