|Office of the Attorney General - State of Texas
April 26, 2000
Mr. Alberto J. Peña
Dear Mr. Peña:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134526.
The City of San Antonio Police Department (the "department") received a request for seven items of information relating to its Vice Unit operations. You claim that the first six items are questions rather than requests for public information and not subject to the Public Information Act (the "Act"). You assert the seventh item is overly vague and have asked the requestor for clarification. Consistent with your arguments, you initially submitted no information for our review. Subsequent to a phone conversation with this office, you supplied a single "summary document" in which you catalogue expenses from twenty-three investigations taking place at five establishments. We have considered your arguments and have reviewed the submitted materials.
While it is true, as you state, that the department is not required to prepare new information in response to a request, see Attorney General Opinion H-90 (1973) and Open Records Decision No. 452 1t 2 (1986), a governmental body must make a good faith effort to relate a request to information which it holds. Open Records Decision No. 561 at 8-9 (1990), 87 (1975). It is well established that a governmental body may not disregard a request for records made pursuant to the Act merely because a requestor does not specify the exact documents desired. A hyper-technical reading of the Act does not effectuate the purpose of the Act; a written communication that reasonably can be judged to be a request for public information is a request for information under the Act. Open Records Decision Nos. 497 at 3 (1988), 44 at 2 (1974).
Section 552.222(b) of the Government Code provides that if a governmental body is unable to determine the nature of the records being sought, it may ask the requestor to clarify the request so that the desired records may be identified. This office has previously held that a request "must sufficiently identify the information requested and an agency may ask for a clarification if it cannot reasonably understand a particular request." Open Records Decision Nos. 663 at 4 (1999), 23 at 1-2 (1974); see also Open Records Decision No. 304 (1982) (governmental body sought clarification as to particular documents sought when requestor asked for all documents relating to particular issue). However, section 552.222 does not stand for the proposition that a request may be denied merely because it seeks a broad range of documents. The purpose of this section is to authorize a dialogue between the governmental body and the requestor regarding the scope of the records request. ORD 663. When a requestor makes a vague or broad request, the governmental body should make a good faith effort to advise the requestor of the type of documents available so that the requestor may narrow or clarify the request. See id. at 5. On the other hand, if the requestor chooses not to narrow a broad request, the governmental body must release all responsive information if no exception to disclosure applies. Furthermore, the administrative inconvenience of providing public records is not grounds for refusing to comply with the Act. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 687 (Tex. 1976).
The requestor begins by stating she is seeking "to obtain files from the San Antonio Vice Unit concerning undercover operations they perform at local strip clubs." (Emphasis added). She follows this with a series of questions that relate to the expenditure of public funds, the assignment of public employees, and the arrest and citation history associated with her target topic. Although the first six items of the request are indeed questions, we believe they can reasonably be construed as a request for public information and should have, at the least, triggered a dialogue conducted in good faith consistent with the previously cited authority.
You assert the seventh requested item is overly vague and that you have requested clarification from the requestor. Specifically, the request states:
I'm sending this request to obtain files from the San Antonio Vice Unit concerning undercover operations they perform at local strip clubs.
. . .
7) I would like a copy of any police reports related to questions 5 & 6 [relating to arrests and citations made by the Vice Unit in 1999].
In response to this request, the department sent a letter to the requestor stating: "In order for the department to conduct a search for the reports you seek, you must specify the names and addresses of the businesses that you consider 'strip clubs.'" You assert that the requestor agreed to provide a list of the businesses fitting that description, but that she has failed to do so.
We believe that, based on the authority cited above, the department has two choices when faced with a request of this nature: either seek clarification or a narrowing of the request, explaining to the requestor the types of information available or, in the alternative, make a good faith effort to relate the request to information in the department's possession and release that information or assert the reasons why it believes release is improper. Here, we conclude the department has done neither.
Contrary to the department's assertion that request Item 7 is too vague, we believe that request Item 7 is sufficiently clear to inform the department of the records being requested, as is evidenced by your ability to identify responsive records from which to extract your "summary document" information. While there may be some question as to which businesses in San Antonio fall into the category of "strip clubs," we are certain that the department can identify which businesses its Vice Unit investigated during 1999. The department did seek clarification of request Item 7, but did not advise the requestor of the array of information held by the department. The requestor chose not to respond. It was incumbent on the department to make a good faith effort to assemble the information it deemed responsive to the request and either release it or submit to this office an explanation why the information is not subject to disclosure.
Additionally we note that, pursuant to section 552.301(e)(4), a governmental body is required to submit to this office within fifteen business days of receiving an open records request a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. You did not, however, submit to this office copies or representative samples of the specific information that was requested. A governmental body's failure to submit the information required in section 552.301(e) within the specified time limits results in the legal presumption that the information is public and must be released. Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The governmental body must show a compelling interest to withhold the information to overcome this presumption. Gov't Code § 552.302. Waiver of applicable permissive exceptions may be a consequence of a governmental body's failure to comply with the obligations prescribed by section 552.301. Open Records Decision No. 663 (1999) outlines the requirements for tolling of the time limits established under section 552.301. See ORD 663 at 4. As discussed above, the department did not satisfy those requirements; consequently, no tolling took place in this instance. Further, the department has asserted no compelling interest to withhold the requested information; therefore, the department must locate, assemble, and release the requested information. The department may, of course, seek to clarify or narrow the request after explaining to the requestor the types of information available. However, having waived any applicable exceptions relating to the original request, the department must release the requested information, whether or not the requestor agrees to narrow or clarify her request.
This letter ruling is limited to the particular records 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 records or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).
If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).
If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ).
If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.
Ref: ID# 134526
Encl. Submitted document
cc: Ms. Susan Defino
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US