Office of the ATTORNEY GENERAL
December 19, 2002
Mr. Jonathan Kaplan
Dear Mr. Kaplan:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID#173932.
The City of San Antonio (the "city") received a request for copies of the planning and architectural design (including the contractors' names and addresses) used in the renovation of Sul Ross Middle School from 1986 to the present. You claim that the requested information may be excepted from disclosure under section 552.110 of the Government Code. Furthermore, you state, and provide documentation showing, that you have notified PBK Architects, Inc., Madeline Anz Slay Architecture PLLC, Slay Engineering, and Silber and Associates, third parties whose proprietary interests may be implicated by the request for information. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Public Information Act in certain circumstances). We have considered all submitted arguments and reviewed the representative sample of information submitted by the city.(1)
Initially, we must address the city's obligations under section 552.301 of the Government Code. Pursuant to section 552.301(b), a governmental body must ask for a decision from this office and state the exceptions that apply not later than the tenth business day after the date of receiving the written request. Further, pursuant to section 552.301(e), a governmental body is required to submit to this office within fifteen business days of receiving an open records 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. You state that the city received the present request for information on July 10, 2002. The city did not request a decision from this office or submit to this office a copy of, or a representative sample of, the specific information requested until October 11, 2002. See Gov't Code § 552.308(a). Consequently, the city failed to comply with the requirements of both section 552.301(b) and 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 that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). Normally, a compelling interest exists where some other source of law makes the information confidential or where third party interests are at stake. Open Records Decision No. 150 at 2 (1977). You state that a third party's property or privacy interests may be involved, thus presenting a compelling reason to overcome the presumption that the information responsive to the request is public. Consequently, we will consider the applicability of section 552.110 to the third party information responsive to the request.
In accordance with section 552.305(d), the city was required to notify the four involved firms of the records request and of their right to submit arguments to this office as to why their respective documents should not be released to the public. See Gov't Code § 552.305(d); Open Records Decision No.542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under Public Information Act in certain circumstances). 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. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, none of the third parties notified by the city has submitted to this office its reasons explaining why its information should not be released. Therefore, none of the third parties has provided us with any basis to conclude that it has a protected proprietary interest in any of the submitted information. See Gov't Code § 552.110(b) (to prevent disclosure of commercial or financial information, party must show by specific factual or evidentiary material, not conclusory or generalized allegations, that it actually faces competition and that substantial competitive injury would likely result from disclosure); Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). Consequently, the city must release the requested information.
However, we note that some of the submitted materials are copyrighted. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990).
In summary, while the city may not withhold any of the requested information from disclosure, it may only allow inspection of copyrighted information and need not furnish copies of such information to the requestor.
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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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.
Heather Pendleton Ross
c: Mr. John Bustos
Siber & Associates
Madeline Anz Slay Architecture
1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.