September 5, 2012

Ms. Ashley R. Allen

Staff Attorney

Administrative Law Section

Texas General Land Office

P.O. Box 12873

Austin, Texas 78711-2873

OR2012-14030

Dear Ms. Allen:

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# 464090.

The Texas General Land Office (the "GLO") received two requests from the same requestor for correspondence containing six keywords during a specified time period and information pertaining to a specified request for proposals. Although you take no position with respect to the requested information, you state release of the requested information may implicate the proprietary interests certain third parties. Accordingly, you state the GLO notified the third parties of the request for information and of their rights to submit arguments to this office as to why the requested information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Act in certain circumstances).

We must address the GLO's obligations under the Act. Section 552.301 of the Government Code describes the obligations placed on a governmental body that receives a written request for information it wishes to withhold. Pursuant to section 552.301(e) of the Government Code, the 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. Gov't Code § 552.301(e). You state the GLO received the present requests for information on June 7, 2012. You state the GLO sought clarification of the request on June 13, 2012 and received clarification from the requestor on June 15, 2012. 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 governmental entity, acting in good faith, requests clarification or narrowing of unclear or overbroad request for public information, ten-day period to request attorney general ruling is measured from date request is clarified or narrowed). This office does not count the date the request was received or holidays, including skeleton crew days observed by a governmental body, as business days for the purpose of calculating a governmental body's deadlines under the Act. Accordingly, the GLO's fifteen-business-day deadline was July 10, 2012. However, as of the date of this letter, the GLO has not submitted a copy or representative sample of the specific information requested. Accordingly, we conclude the GLO failed to comply with the requirements of section 552.301(e) of the Government Code.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption the information is public and must be released. Information presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See id. § 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 (Tex. App.--Austin 1990, no writ); see also Open Records Decision No. 630 (1994). Normally, a compelling reason to withhold information exists where some other source of law makes the information confidential or where third-party interests are at stake. See Open Records Decision No. 150 at 2 (1977). Because third party interests are at stake, we will consider whether the requested information must be withheld to protect the interests of any third parties.

We note 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 information relating to that party should be withheld from public disclosure. Gov't Code § 552.305(d)(2)(B). However, as of the date of this letter, we have not received comments from any third parties explaining why their information should not be released. Therefore, we have no basis to conclude any third parties have a protected proprietary interest in any of the requested information. 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, the GLO may not withhold the requested information based upon the proprietary interests of any third parties. Thus, to the extent the requested information existed when the request was received, we have no choice but to order the GLO to release this information in accordance with section 552.302 of the Government Code. If you believe this information is confidential and may not lawfully be released, you must challenge this ruling in court pursuant to section 552.324 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,

Nneka Kanu

Assistant Attorney General

Open Records Division

NK/bhf

Ref: ID# 464090

Enc. Submitted documents

c: Requestor

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