May 21, 2012

Mr. Richard L. Bilbie

Assistant City Attorney

City of Harlingen

P.O. Box 2207

Harlingen, Texas 78551

OR2012-07552

Dear Mr. Bilbie:

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# 454281.

The City of Harlingen (the "city") received a request for copies of all executed lease agreements between the city and any cellular carrier or tower company; any available summary or spreadsheet detailing all cellular communication sites, towers, and antennae agreements; and a list of the current rents that the city is receiving from each of the carriers or tower companies. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, 552.133, 552.139, and 552.152 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the submitted information consists of contracts subject to section 552.022(a)(3) of the Government Code. Section 552.022(a)(3) provides for the required public disclosure of "information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body," unless it is "made confidential under [the Act] or other law[.]" Gov't Code § 552.022(a). Although you raise section 552.108 of the Government Code for this information, this is a discretionary exception that may be waived and does not make information confidential under the Act. See id. § 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 section 552.108 subject to waiver). As such, section 552.108 does not make information confidential for the purposes of section 552.022(a)(3), and the submitted information may not be withheld under that section. However, you also raise sections 552.101, 552.139, and 552.152 of the Government Code, which make information confidential under the Act. Furthermore, section 552.022 does not apply to information subject to section 552.133 of the Government Code. See Gov't Code § 552.133(d). Therefore, we will address the applicability of sections 552.101, 552.133, 552.139, and 552.152 to the submitted information.

You generally assert that the submitted information should be withheld under section 552.101 of the Government Code. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. However, you do not cite to any specific law that makes the information confidential under section 552.101. See id. § 552.301(e)(1)(A) (governmental body must submit written comments stating reasons why stated exceptions apply that would allow information to be withheld); Open Records Decision No. 478 at 2 (1987) (statutory confidentiality requires express language making information confidential or stating information shall not be released to public). Furthermore, we note that some of the information at issue regarding telecommunication towers locations and radio frequencies is already available to the public on the Federal Communications Commission's internet website. Thus, the city may not withhold any of the information under section 552.101 of the Government Code.

Section 552.133 of the Government Code excepts from disclosure a public power utility's information that is "reasonably related to a competitive matter." Id. § 552.133(b). The Texas Legislature amended section 552.133, which now provides in relevant part:

(a) In this section, "public power utility" means an entity providing electric or gas utility services that is subject to the provisions of this chapter.

Id. § 552.133(a). You do not inform us that the city owns or operates a public power utility. We also note that none of the submitted information relates to the provision of electric or gas services. Thus, we find the city has failed to demonstrate how section 552.133 is applicable to the submitted information. Therefore, the city may not withhold any of the submitted information under section 552.133 of the Government Code.

Section 552.139 of the Government Code provides:

(a) Information is excepted from [required public disclosure] if it is information that relates to computer network security, to restricted information under Section 2059.055 [of the Government Code], or to the design, operation, or defense of a computer network.

(b) The following information is confidential:

(1) a computer network vulnerability report; [and]

(2) any other assessment of the extent to which data processing operations, a computer, a computer program, network, system, or system interface, or software of a governmental body or of a contractor of a governmental body is vulnerable to unauthorized access or harm, including an assessment of the extent to which the governmental body's or contractor's electronically stored information containing sensitive or critical information is vulnerable to alteration, damage, erasure, or inappropriate use[.]

Id. § 552.139. Section 2059.055 of the Government Code provides in pertinent part:

(b) Network security information is confidential under this section if the information is:

(1) related to passwords, personal identification numbers, access codes, encryption, or other components of the security system of a state agency;

(2) collected, assembled, or maintained by or for a governmental entity to prevent, detect, or investigate criminal activity; or

(3) related to an assessment, made by or for a governmental entity or maintained by a governmental entity, of the vulnerability of a network to criminal activity.

Id. § 2059.055(b). You state that revelation of telecommunication tower locations and radio frequencies would pose a security risk. However, you have not demonstrated how the submitted information relates to computer network security, or to the design, operation, or defense of the city's computer network as contemplated in section 552.139(a). Further, we find you have failed to explain how the submitted information consists of a computer network vulnerability report or assessment as contemplated by section 552.139(b). Accordingly, the city may not withhold any of the submitted information under section 552.139 of the Government Code.

Section 552.152 of the Government Code provides:

Information in the custody of a governmental body that relates to an employee or officer of the governmental body is excepted from [required public disclosure] if, under the specific circumstances pertaining to the employee or officer, disclosure of the information would subject the employee or officer to a substantial threat of physical harm.

Id. § 552.152. Upon review, we find you have not demonstrated release of the submitted contracts would subject an employee or officer to a specific substantial risk of physical harm. Accordingly, the city may not withhold the information under section 552.152 of the Government Code. As you raise no further exceptions to disclosure, the submitted information must be released in its entirety.

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,

Jeffrey W. Giles

Assistant Attorney General

Open Records Division

JWG/dls

Ref: ID# 454281

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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