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January 21, 2000

Ms. Kimberley Mickelson
Olson & Olson
Three Allen Center, Suite 3485
333 Clay Street
Houston, Texas 77002

OR2000-0196

Dear Ms. Mickelson:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131350.

The City of Friendswood (the "city") received a request for "all documentation sent or received from the Texas Attorney General's Office from October 1, 1999 through October 31, 1999." You have submitted to this office as responsive to the request correspondence, including enclosures, that the city submitted to this office in connection with the city's requests for decisions pursuant to chapter 552 of the Government Code during the month of October, 1999. We note at the outset that you do not raise any particular exception to required public disclosure with regard to the requested information, but rather contend that the requested documents are "in active use."

The applicable test for required disclosure is twofold: whether the requested information is collected, assembled, or maintained by a governmental body, and, if so, whether the information falls within one of the specific exceptions to disclosure. Open Records Decision No. 460 (1987). Although information may be temporarily withheld if it is in immediate active use, this simply permits an agency to avoid unreasonable disruption of its immediate business by scheduling a more convenient, but reasonable time to provide the information. Open Records Decision No. 121 (1976). See also Gov't Code 552.221(c) (providing that if requested information is unavailable because it is in active use, governmental body must certify such in writing and set date and hour within reasonable time when information will be available).

As we understand your representations, however, your actual concern here seems to be that the records at issue consist of either 1) documents that the city has sought to withhold from public disclosure in response to other records requests or 2) portions of the city's briefs to this office that may reveal the content of those requested records. With regard to the first category of records, we note that, at this point in time, any documents that were the subject of a requested decision from this office have been ruled upon by this office, and the city now must comply with those rulings when responding to the current request. Thus, to the extent the current request encompasses information this office has previously found to be excepted from required public disclosure, the city should rely on the previous decisions to release or withhold the information at issue in those decisions.

As for the second category of records, please be aware that it is the policy of this office to consider all briefing this office receives during its decision process as public, except to the extent that the governmental bodies' briefs contain or otherwise reveal the information they seek to withhold. See Gov't Code 552.302(d); Open Records Decision Nos. 508 (1988), 459 (1987). In fact, the current requestor made an additional records request to this office during the pendency of this matter for all "correspondence and documentation" submitted by the city regarding the current decision request. In response, this office examined the records at issue and, after determining that none of the city's briefs contained or otherwise revealed the contents of the documents then at issue, released copies of all the city's briefing to the requestor.(1)

We feel obligated to address certain issues raised by your request for a decision in this instance. Despite the fact that this office has previously ruled on all of the documents at issue in the prior decision requests, you did not inform this office that the city wished to withdraw its "active use" argument with regard to those records. Further, although you expressed concern that the city's briefings to this office may reveal the content of the records then at issue, you identified no such information in the briefs themselves, and our review of those records did not identify any such information. See Gov't Code 552.301(e)(2).

Finally, we note that section 552.301(d)(2) now specifically provides that a governmental body that seeks to withhold information under chapter 552 of the Government Code must provide the requestor, within ten business days of receipt of the records request, a copy of the governmental body's initial communication to this office.(2) Otherwise, the requested information is presumed to be public and must be released unless there is a "compelling reason" for withholding the information. Any ruling issued by this office to the city during the time period in question was premised on the assumption that the city had complied with the requirements set forth in section 552.301(d).

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).

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.

Sincerely,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/RWP/ch

Ref: ID# 131350

Encl. Submitted documents

cc: Mr. Jeff Branscome
308 Woodstream Circle
Friendswood, Texas 77546
(w/o enclosures)


 

Footnotes

1. Our action does not, however, necessarily relieve the city of its obligation to now comply with this aspect of the current request. The city should verify with the requestor as to whether he still desires the city to provide these records.

2. The copy of the communication provided to the requestor may be redacted only to the extent that it reveals the requested information at issue. Gov't Code 552.301(d)(2).
 

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