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John Cornyn

December 28, 2000

Ms. Ruth H. Soucy
Deputy General Counsel
Comptroller of Public Accounts
P.O. Box 13528
Austin, Texas 78711-3528


Dear Ms. Soucy:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 143319.

The Comptroller of Public Accounts (the "comptroller") received a written request for two particular documents: a response to "the 11/15 memo concerning Mike Doyle" and a list of "the 500 largest taxpayers" from 1998. With regard to the first requested item, you have informed the requestor that

Mr. Doyle did not produce any written document in response to this November 15, document. Therefore, we have nothing responsive to that part of your request.

It is well established that the Public Information Act does not require a governmental body to obtain information not in its possession or to prepare new information in response to a requestor. Open Records Decision No. 445 (1986). Based on your representation that the comptroller does not possess any document responsive to this portion of the request, we conclude that the comptroller need not release any other information.

You next contend that the requested list of the top 500 taxpayers is made confidential under section 151.027 of the Tax Code and thus must be withheld from the public pursuant to section 552.101 of the Government Code. Section 552.101 of the Government Code excepts from required public disclosure information that is confidential by law, including information made confidential by statute. Section 151.027(a) provides confidentiality for information collected under the Limited Sales, Excise, and Use Tax Act and reads as follows:

(a) Information in or derived from a record, report, or other instrument required to be furnished under this chapter is confidential and not open to public inspection, except for information set forth in a lien filed under this title or a permit issued under this chapter to a seller and except as provided by Subsection (c) of this section.

This provision prevents the disclosure of information and data obtained or "derived" from a taxpayer's records. You indicate that the requested list consists of either the sales or use tax return information required to be submitted by the taxpayer pursuant to section 151.403 of the Tax Code. Consequently, we conclude that the list of taxpayers you submitted to this office for review is confidential pursuant to section 151.027(a) of the Tax Code and therefore must be withheld from the public pursuant to section 552.101 of the Government Code.(1)

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 Hadassah Schloss at 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.


Jennifer Bialek
Assistant Attorney General
Open Records Division


Ref: ID# 143319

Encl: Submitted documents

cc: Mr. Richard J. Langenstein
Attorney at Law
3104 Edloe, Suite 300
Houston, Texas 77027-6022
(w/o enclosures)



1. The requestor alleges that the comptroller previously released this or a similar list to a member of the public and that "[o]ther tax consulting firms should, in fairness, have the benefit of the same information." You deny that any such release ever took place. This office cannot resolve factual disputes. However, whether any such release occurred in the past would not now affect the confidentiality of the information at issue.

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