|Office of the Attorney General - State of Texas
May 16, 2000
Mr. Alfredo Montano, Jr.
Dear Mr. Montano:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135305.
The City of Weslaco (the "city") received a request for "notes, documents or agreements that deals with the executive session item pertaining to the bridge in Donna that the city wants to be a partner in." You claim that the requested information is excepted from disclosure under section 551.086 of the Government Code. We first note that this provision of the Government Code is not an exception to the public disclosure requirements of Government Code section 552.021. You have not submitted any responsive information to this office for review.
The Public Information Act requires a governmental body that wishes to withhold requested information to provide to this office a copy of the specific information requested, or a representative sample thereof, labeled to indicate which of the exceptions to disclosure detailed in chapter 552 of the Government Code apply to which parts of the information, within fifteen business days of its receipt of the request for information. Gov't Code § 552.301(e). If the governmental body does not comply with this requirement, the requested information is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Gov't Code § 552.302. Such a compelling reason is demonstrated where information is made confidential by other law, or where third party interests are at issue. Open Record Decision No. 150 (1977).
We note that the information request may be construed to include items that are excepted from disclosure by section 552.101 of the Government Code. This section excepts from disclosure information deemed confidential by law. Section 551.104(c) of the Government Code provides that "[t]he certified agenda or tape of a closed meeting is available for public inspection and copying only under a court order issued under Subsection (b)(3)." (Emphasis added.) Thus, such information cannot be released to a member of the public in response to an open records request. See Open Records Decision No. 495 (1988). The city must withhold the certified agenda or tape from an executive session under section 552.101 of the Government Code in conjunction with section 551.104(c) of the Government Code. However, the mere fact that a document was discussed in an executive session does not make that document confidential for Public Information Act purposes. Open Records Decision No. 485 (1987); see also Open Records Decision No 606 at 2-3 (1992). We conclude that other than a certified agenda or tape of a closed meeting, information responsive to this request must be released. See Open Records Decision No 630 (1992)( fact that information falls within attorney client privilege does not provide compelling reason to overcome presumption of openness under section 552.302). You have not submitted the information, so we have no basis for finding it confidential. Thus, we have no choice but to order the information released per section 552.302. If you believe the information is confidential and may not lawfully be released, you must challenge the ruling in court as outlined below.
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.
Michael Jay Burns
Ref: ID# 135305
Encl. Submitted documents
cc: Mr. Robert Theobald