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March 14, 2000

Mr. Michael Young
Staff Attorney
Office of General Counsel
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3190

OR2000-1003

Dear Mr. Young:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 133897.

The Texas Department of Health (the "department") received a written request from the Brazoria County District Attorney's Office (the "district attorney") for "all records pertaining to the Brazoria County WIC Program." You state that the department has released some information to the requestor. You contend that certain other information is made confidential by federal regulation and thus must be withheld from the public pursuant to section 552.101 of the Government Code.

We note at the outset that the department received the request for information on January 10, 2000, but you did not request a decision from this office regarding this matter until February 3, 2000. Section 552.301(a) of the Government Code requires a governmental body to release requested information or to request a decision from the attorney general within ten business days of receiving a request for information the governmental body wishes to withhold. When a governmental body fails to request a decision within ten business days of receiving a request for information, the information at issue is presumed public. Gov't Code 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The governmental body must show a compelling interest to withhold the information to overcome this presumption. See Hancock, 797 S.W.2d at 381.

The fact that information is made confidential by law found outside the Public Information Act constitutes a compelling demonstration that the information should be withheld from the public. See Open Records Decision No. 150 (1977). Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information made confidential by federal regulation. See generally Open Records Decision No. 476 (1987) (federal regulations adopted pursuant to statutory authority provide statutory confidentiality for purposes of statutory predecessor to section 552.101). Consequently, we will consider your arguments for withholding the requested information pursuant to section 552.101.

Section 246.26(d) of Title 7 of the Code of Federal Regulations provides for the confidentiality of certain information pertaining to the administration of the WIC program. Specifically, section 246.26(d) provides as follows:

The State agency shall restrict the use or disclosure of information obtained from program applicants and participants to:

(1) Persons directly connected with the administration or enforcement of the program, including persons investigating or prosecuting violations in the WIC Program under Federal, State or local authority;

(2) Representatives of public organizations designated by the chief State health officer (or, in the case of Indian State agencies, the governing authority) which administer health or welfare programs that serve persons categorically eligible for the WIC Program. The State agency shall execute a written agreement with each such designated organization:

(i) Specifying that the receiving organization may employ WIC Program information only for the purpose of establishing the eligibility of WIC applicants and participants for health or welfare programs which it administers and conducting outreach to WIC applicants and participants for such programs, and

(ii) Containing the receiving organization's assurance that it will not, in turn, disclose the information to a third party; and

(3) The Comptroller General of the United States for audit and examination authorized by law. [Emphasis added.]

The information you seek to withhold consists of the names of WIC applicants and participants. We believe that such information constitutes "information obtained from program applicants and participants" for purposes of section 246.26. Furthermore, this office has been presented with no evidence to suggest that the district attorney is requesting this information pursuant to section 246.26(d)(1); consequently, we have no basis on which to conclude in this instance that the district attorney has a special right of access to the information at issue. We conclude, therefore, that the department must withhold the information at issue pursuant to section 552.101 of the Government Code in conjunction with section 246.26 of Title 7 of the Code of Federal Regulations.(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).

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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/RWP/cwt

Ref.: ID# 133897

cc: Mr. David P. Kallus
Assistant District Attorney
Brazoria County Courthouse
111 E. Locust, Suite 408A
Angleton, Texas 77515
(w/o enclosures)


 

Footnotes

1. Because we resolve your request under section 246.26, we need not address your other arguments for non-disclosure.
 

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