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January 11, 1999

Ms. Laura Fiorentino Cahill
Assistant City Attorney
Harris County
1001 Preston, Suite 634
Houston, Texas 77002-189

OR99-0056

Dear Ms. Cahill:

You ask whether certain information is subject to required public disclosure under the Texas Open Records Act, chapter 552 of the Government Code. Your requests were assigned ID# 121494 and ID# 121619.

The Harris County Flood Control District (the "county") received two open records request for eight categories of information from each requestor concerning White Oak Bayou. You do not contend that the requested information comes within any of the exceptions to disclosure listed in subchapter C of the Open Records Act. You contend, however, that the requested HEC-1 and HEC-2 models for certain county units, "HEC-1 and HEC-2 models for White Oak Bayou," and "1' topographic information adjacent to White Oak Bayou" are not subject to disclosure pursuant to section 552.027 of the Government Code because they are "commercially available" elsewhere for a fee. Because you do not object to the release of the remaining requested items, you must release those items.

Section 552.027 of the Government Code provides:

(a) A governmental body is not required under this chapter to allow the inspection of or to provide a copy of information in a commercial book or publication purchased or acquired by the governmental body for research purposes if the book or publication is commercially available to the public.

(b) Although information in a book or publication may be made available to the public as a resource material, such as a library book, a governmental body is not required to make a copy of the information in response to a request for public information.

(c) A governmental body shall allow the inspection of information in a book or publication that is made part of, incorporated into, or referred to in a rule or policy of a governmental body. [Emphasis added.]

This section is designed to alleviate the burden of providing copies of commercially available books, publications, and resource materials maintained by governmental bodies, such as telephone directories, dictionaries, encyclopedias, statutes, and periodicals. The legislative history of this provision notes that section 552.002 should exclude from the definition of public information

books and other materials that are also available as research tools elsewhere to any member of the public. Thus, although public library books are available for public use, the library staff will not be required to do research or make copies of books for members of the public.

Interim Report to the 74th Legislature of the House State Affairs Comm., 74th Leg., R.S., Subcommittee on Open Records Revisions 9 (1994) (emphasis added). Therefore, section 552.027 excludes commercially available research material from the definition of "public information."

You have submitted the User's Manual for the HEC-1 and HEC-2 Generalized Computer Program for our review. This submitted information appears to be non-responsive to the request. The requestors ask for specific models for White Oak Bayou and other specified properties. Thus, it appears that the requestors are asking for the actual, resulting models developed for these properties once the physical data are inputted into the computer models. You have neither submitted the output models nor would section 552.027 apply to the output models as they are not commercially available. Thus, you must release the requested models for the specified properties.

As for the topographic map, you inform us that it is "available for a fee from the United States Geological Survey (USGS)." Assuming that the map was acquired by the county for research purposes, the map falls within the purview of section 552.027(a). However, we note that section 552.027(c) may require inspection of the requested topographical map if the information is made part of or incorporated into the county's policy-making function.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Yours very truly,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/nc

Ref.: ID# 121494, ID# 121619

Enclosures: Submitted documents

cc: Ms. Christina S. Crawford
Legal Assistant
Blackburn & Carter, P.C.
131 Eastside, Suite 450
Houston, Texas 77098
(w/o enclosures)

Mr. Lawrence J. Dunbar, P.E.
Water Resources & Environmental Engineer/Consultant
6342 Dew Bridge
Sugarland, Texas 77479
(w/o enclosures)


 

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