|Office of the Attorney General - State of Texas
November 22, 2000
Mr. Jeffrey T. Pender
Dear Mr. Pender:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 141580.
The General Land Office (the "GLO") received a request for a copy of the appraisal "done on the property involved in a dispute between the GLO and the City of Aransas Pass (the "city") resulting from Special Award No. 1 dated 1944," as well as certain documents pertaining to communications between the GLO and the city pertaining to the property involved in the dispute. You claim that the requested information is excepted from disclosure under sections 552.104 and 552.105 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
Initially, we note that the Seventy-sixth Legislature amended section 552.022 of the Government Code to make certain information expressly public, and therefore not subject to discretionary exceptions to disclosure. Gov't Code § 552.022. Section 552.022 now states in relevant part:
Gov't Code § 552.022. One such category of expressly public information under section 552.022 is "a completed report, audit evaluation, or investigation made of, for, or by a governmental body, except as provided by [s]ection 552.108 . . . ." Gov't Code § 552.022(a)(1). The submitted appraisal is a completed report made for the GLO. Therefore, as prescribed by section 552.022, the submitted appraisal must be released to the requestor unless it is confidential under other law.
You argue that the appraisal is excepted from disclosure under sections 552.104 and 552.105. Sections 552.104 and 552.105 are discretionary exceptions and not "other law" for purposes of section 552.022.(1)
Moreover, we know of no other law that would make the submitted appraisal confidential. Accordingly, the GLO must release the submitted appraisal report under section 552.022(a)(1).
We now turn to the remaining submitted information. Section 552.105 excepts from disclosure information relating to:
(1) the location of real or personal property for a public purpose prior to public announcement of the project; or
(2) appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property.
Section 552.105 is designed to protect a governmental body's planning and negotiating position with regard to particular transactions. Open Records Decision Nos. 564 (1990), 357 (1982), 310 (1982). Information excepted under section 552.105 that pertains to such negotiations may be excepted so long as the transaction is not complete. Open Records Decision No. 310 (1982). Because this exception extends to "information pertaining to" the location, appraisals, and purchase price of property, it may protect more than a specific appraisal report prepared for a specific piece of property. Open Records Decision No. 564 (1990) at 2. For example, this office has concluded that appraisal information about parcels of land acquired in advance of others to be acquired for the same project could be withheld where this information would harm the governmental body's negotiating position with respect to the remaining parcels. Id. A governmental body may withhold information "which, if released, would impair or tend to impair [its] 'planning and negotiating position in regard to particular transactions.'" Open Records Decision No. 357 (1982) at 3 (quoting Open Records Decision No. 222 (1979)).
You inform this office that on August 31, 1998, the GLO received a written proposal from a real estate developer in the form of a master lease and development plan for the Conn Brown Harbor area within the city, and that a similar contract was contemporaneously proposed to the city. You state that the property is the subject of a title dispute between the GLO and the city, and that an appraisal was done on the property to facilitate resolution of the dispute through a land trade and joint development venture involving the disputed property. You further inform us that "[a]t the moment it is uncertain whether the current applicant/commercial developer will be ultimately awarded the right to develop. It is also uncertain exactly which lands . . . will be ultimately included in a swap, or other settlement with the city. All that is certain at this time is that the City and the state would like to jointly develop the Conn Harbor area through a third party developer."
In support of your assertion, you argue that "if the results of this appraisal, in particular the methods used and the values assigned to various tracts, are released to the public, it will prejudice the state and the City in their ability to obtain the most favorable offer to develop the harbor area . . . . For example, if a potential bidder/applicant believes the land is worth more than the state's appraisal shows, and the bidder/applicant has not seen the state's lower appraisal, the bidder/applicant is likely to offer . . . more rent and/or more beneficial lease terms. If he or she sees the state's appraisal before submitting an application or bid, they will likely offer less beneficial terms. . . ."
When a governmental body has made a good faith determination that the release of information would damage its negotiating position, the attorney general in issuing a ruling will accept that determination unless the records or other information show the contrary as a matter of law. Open Records Decision No. 564 (1990). Upon review of the GLO's arguments and the information submitted, we agree that release of the appraisal summary would damage the GLO's negotiating position with respect to development of the harbor area. Accordingly, the appraisal summary may be withheld from required public disclosure under section 552.105 of the Government Code.
To summarize, the GLO must release the requested appraisal report pursuant to section 552.022(a)(1) of the Government Code. The accompanying appraisal summary may be withheld under section 552.105 of the Government Code.
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).
Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.
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 A. Pearle
Ref: ID# 141580
Encl. Submitted documents
cc: Mr. L.H. Dunlap
1. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 592 at 8 (1991) (governmental body may waive section 552.104, information relating to competition or bidding), 549 at 6 (1990) (governmental body may waive informer's privilege), 522 at 4 (1989) (discretionary exceptions in general). Discretionary exceptions therefore do not constitute "other law" that makes information confidential.