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April 8, 1999

Mr. Thomas G. Ricks
President and Chief Executive Officer
University of Texas Investment Management Company
210 West Sixth Street, Second Floor
Austin, Texas 78701

OR99-0962

Dear Mr. Ricks:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "act"), chapter 552 of the Government Code. Your request was assigned ID# 123225.

The University of Texas Investment Management Company ("UTIMCO") received a request for access to the following information:

all electronic records, files and entries concerning "Lisson" and/or "Initiate," including audit trails, histories, reports and generation of commands to add or delete information, since 1996.

Relying on sections 552.231 and 552.272 of the Government Code, you notified the requestor that compliance with his request would require programming and manipulation of data and informed him that UTIMCO will not begin the necessary programming and manipulation until he posts a bond or deposit in the appropriate amount. You contend that the requested information is excepted from disclosure pursuant to sections 552.101, 552.102, 552.103, 552.104, 552.107, 552.110, and 552.111 of the Government Code.

Pursuant to section 552.301(b) of the Government Code, a governmental body is required to submit to this office (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, and (3) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Pursuant to section 552.303(c) of the Government Code, this office notified you by facsimile on February 3, 1999, that you had failed to submit a copy of the information at issue and written comments explaining why the stated exceptions apply to the information. We requested that you provide this information to our office within seven days from the date of receiving the notice. The notice further stated that under section 552.303(e) failure to comply would result in the legal presumption that the information at issue is public information.

In response to the notice, you inform us that you cannot provide us with a copy of the information at issue because, pursuant to section 552.231, UTIMCO is not required to begin retrieving the requested information until the requestor posts the appropriate bond, and UTIMCO cannot determine which specific information is within the scope of the request until it begins retrieving the information. For these same reasons, you state that you also cannot provide us with your written comments explaining why the stated exceptions apply to the information.

We note that according to documents submitted to this office by the requestor, the General Services Commission (the "commission") has "determined that UTIMCO may not assess charges of $285 to manually search the on-line files containing some of the information requested by Mr. Stephen N. Lisson." This determination is based on the commission's finding that searching the "on-line files" for responsive information does not require programming or manipulation of data. Based on this information, it appears that UTIMCO is required to go forward with its response to the request to the extent that the requested information is contained in the "on-line files", and that UTIMCO is only authorized to require the requestor to post a bond or deposit for those portions of the response that require programming or manipulation of data.

Although section 552.231 relieves a governmental body of the obligation to perform programming and manipulation of data until the requestor and the governmental body agree to cost and time parameters, section 552.231 does not relieve a governmental body of its obligation to submit a copy of the information at issue to this office with its request for an opinion. We note that the act allows for the submission of representative samples of the information at issue and does not require that the information submitted to this office for review be in the same format in which the governmental body will ultimately provide it to the requestor. This office cannot deem information excepted from disclosure without reviewing the information at issue and evaluating the governmental body's arguments against disclosure. The act does not authorize the extension of a governmental body's deadlines for submitting its arguments and the information at issue to this office. For these reasons, we conclude that your failure to provide us with your arguments and the information at issue results in the presumption that the information at issue is public. See Gov't Code 552.303(e). In the absence of a demonstration that the information is confidential by law or that other compelling reasons exist as to why the information should not be made public, you must release the information. See 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); Open Records Decision Nos. 319 (1982), 195 (1978).

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.

Sincerely,

Karen E. Hattaway
Assistant Attorney General
Open Records Division

KEH\ch

Ref: ID# 123225

cc: Mr. Stephen N. Lisson
Editor & Publisher
INITIATE!!
P.O. Box 2013

Austin, Texas 78768-2013


 

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