April 16, 2012

Ms. Janet I. Monteros

Assistant County Attorney

El Paso County Attorney's Office

500 East San Antonio, Room 503

El Paso, Texas 79901

OR2012-05428

Dear Ms. Monteros:

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# 450926 (El Paso File No. OP-12-044).

The El Paso County Purchasing Department (the "department") received a request for information pertaining to request for proposals #11-014. You state the department is releasing some of the requested information. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.111, and 552.136 of the Government Code. You also state release of the submitted information may implicate the interests of third parties. Accordingly, you state, and provide documentation demonstrating, the department notified American Cadastre LLC d/b/a AMCAD ("AMCAD") and HOV Services ("HOV") of the request for information and of their right to submit arguments stating why their information should not be released. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in certain circumstances). We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽¹⁾

An interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) to submit its reasons, if any, as to why requested information relating to it should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, this office has not received comments from AMCAD or HOV explaining why their information should not be released to the requestor. Thus, we have no basis to conclude that the release of any portion of the requested information would implicate the third parties' interests. See id. § 552.110; Open Records Decision Nos. 661 at 5-6 (1999) (to prevent disclosure of commercial or financial information, party must show by specific factual evidence, not conclusory or generalized allegations, that release of requested information would cause that party substantial competitive harm), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3. Accordingly, we conclude that the department may not withhold any of the submitted information on the basis of any interest AMCAD or HOV may have in the information.

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. This section encompasses information protected by other statutes. You assert the marked federal tax identification numbers are excepted from disclosure under section 552.101 in conjunction with section 6103(a) of title 26 of the United States Code. ⁽²⁾ Prior decisions of this office have held section 6103(a) of title 26 of the United States Code renders "tax return information" confidential. See Attorney General Opinion H-1274 (1978) (tax returns); Open Records Decision Nos. 600 (1992) (W-4 forms), 226 (1979) (W-2 forms). Section 6103(b) defines the term "return information" as:

a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments . . . or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary [of the Internal Revenue Service] with respect to a return or with respect to the determination of the existence, or possible existence, of liability . . . for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense[.]

26 U.S.C. § 6103(b)(2)(A). Federal courts have construed the term "return information" expansively to include any information gathered by the Internal Revenue Service (the "IRS") regarding a taxpayer's liability under title 26 of the United States Code. See Chamberlain v. Kurtz, 589 F.2d 827, 840-41 (5th Cir. 1979); Mallas v. Kolak, 721 F. Supp. 748, 754 (M.D.N.C. 1989), aff'd in part, 993 F.2d 1111 (4th Cir. 1993). The federal tax identification numbers you have marked do not fall under the definition of tax return information. See 26 U.S.C. § 6103(b)(2)(A). Therefore, these numbers are not confidential under section 6103(a) of title 26 of the United States Code and may not be withheld on that basis.

Section 552.111 of the Government Code excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." Gov't Code § 552.111. Section 552.111 encompasses the deliberative process privilege. See Open Records Decision No. 615 at 2 (1993). The purpose of section 552.111 is to protect advice, opinion, and recommendation in the decisional process and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, no writ); Open Records Decision No. 538 at 1-2 (1990).

In Open Records Decision No. 615, this office reexamined the statutory predecessor to section 552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We determined section 552.111 excepts from disclosure only those internal communications that consist of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. ORD 615 at 5; see also City of Garland v. Dallas Morning News, 22 S.W.3d 351, 364 (Tex. 2000); Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152 (Tex. App.--Austin 2001, no pet.). A governmental body's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). However, a governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. ORD 615 at 5-6; see also Dallas Morning News, 22 S.W.3d at 364 (section 552.111 not applicable to personnel-related communications that did not involve policymaking).

Further, section 552.111 does not generally except from disclosure facts and written observations of facts and events that are severable from advice, opinions, and recommendations. Arlington Indep. Sch. Dist., 37 S.W.3d at 157; ORD 615 at 5. But if factual information is so inextricably intertwined with material involving advice, opinion, or recommendation as to make severance of the factual data impractical, the factual information also may be withheld under section 552.111. See Open Records Decision No. 313 at 3 (1982).

You state the submitted scoring sheets you have marked relate to the department's evaluation of prospective contractors' proposals, and state they were created by department personnel in a deliberative process. You indicate the information at issue pertains to policymaking functions of the department. Additionally, you contend the information at issue consists of advice, opinion, and recommendation, the release of which would have a chilling effect on the deliberative process by inhibiting the department's free discussion of policy issues. Based on your representations and our review of the information at issue, we find the scoring sheets you have marked constitute advice, opinion, and recommendation made by the department. Thus, the department may withhold the information you have marked under section 552.111 of the Government Code.

Section 552.136 states, "Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136(b). Section 552.136(a) defines "access device" as "a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to: (1) obtain money, goods, services, or another thing of value; or (2) initiate transfer of funds other than a transfer originated solely by paper instrument." Id. § 552.136(a). You seek to withhold the federal tax identification numbers you have marked under section 552.136. Upon review, we find you have failed to demonstrate how the marked federal tax identification numbers constitute access device numbers used to obtain money, goods, services, or another thing of value or initiate a transfer of funds other than a transfer originated solely by paper instrument. Therefore, the department may not withhold this marked information under section 552.136 of the Government Code.

You state some of the submitted information may be protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Open Records Decision No. 180 at 3 (1977). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id.; see Open Records Decision No. 109 (1975). If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit.

In summary, the department may withhold the information you have marked under section 552.111 of the Government Code. The department must release the remaining information; however, any information protected by copyright maybe released only in accordance with copyright law.

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,

Lindsay E. Hale

Assistant Attorney General

Open Records Division

LEH/ag

Ref: ID# 450926

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. Dwight Silversten

American Cadastre LLC d/b/a AMCAD

1710 Whittemore Street

Rock Island, Illinois 61201

(w/o enclosures)

Mr. Greg Pfirman

Senior VP Business Development

HOV Services

2601 East Yandell

El Paso, Texas 79903

(w/o enclosures)

Footnotes

1. This letter ruling assumes that the submitted representative sample of information is truly representative of the requested information as a whole. This ruling does not reach, and therefore does not authorize, the withholding of any other requested information to the extent that the other information is substantially different than that submitted to this office. See Gov't Code §§ 552.301(e)(1)(D), .302; Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).

2. Although you cite to section 6903 of title 26 of the United States Code, this section, entitled "Notice of fiduciary relationship," does not relate to the confidentiality of tax return information. See 26 U.S.C. § 6903. Based on the substance of your arguments, we understand you to assert the information is confidential under section 552.101 of the Government Code in conjunction with section 6103(a) of title 26 of the United States Code.

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