Click for home page Office of the Attorney General - State of Texas
John Cornyn
image
 

April 11, 2000

Mr. S. Anthony Safi
Mounce, Green, Myers, Safi & Galatzan
Attorneys and Counselors at Law
P.O. Box 1977
El Paso, Texas 79950-1977

OR2000-1424

Dear Mr. Safi:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134651.

The El Paso Independent School District (the "district"), which you represent, received a request for a copy of the tape recording of the executive session of the school board and other information pertaining to the district. Because you do not argue that the other requested information is excepted from public disclosure, we assume the district has made this other information available to the requestor. See Gov't Code 552.301, .302. You claim that the tape recording is excepted from disclosure under the Texas Open Meetings Act, chapter 551 of the Government Code, and thus must be withheld from the public pursuant to section 552.101 of the Government Code.(1)

You assert that the requested information is a tape recording of the executive session of the district's board of trustees at which the board of trustees discussed the requestor's internal grievance. Section 551.103(a) of the Government Code provides that a governmental body that is subject to the provisions of the Open Meetings Act "shall either keep a certified agenda or make a tape recording of the proceedings of each closed meeting, except for a private consultation permitted under Section 551.071." Section 551.104 of the Government Code addresses the preservation and the conditions under which the certified agenda or tape recording of an executive session may be released to the public. Section 551.104 provides in pertinent part:

(a) A governmental body shall preserve the certified agenda or tape recording of a closed meeting for at least two years after the date of the meeting. . . .

(b) In litigation in a district court involving an alleged violation of this chapter, the court:

. . . .

(3) may grant legal or equitable relief it considers appropriate, including an order that the governmental body make available to the public the certified agenda or tape of any part of a meeting that was required to be open under this chapter.

(c) The certified agenda or tape of a closed meeting is available for public inspection and copying only under a court order issued under Subsection (b)(3). [Emphasis added.]

You assert that a certified agenda of the closed portion of the meeting was made pursuant to section 551.103 of the Government Code. Further, you assert that a tape recording was made during the presentation of the requestor's grievance pursuant to section 551.103 of the Government Code, as well as section 7.057(c) of the Education Code, in the event that the requestor chose to appeal to the Commissioner of Education.(2)

Because the tape recording at issue constitutes "a tape recording of a closed meeting," we conclude that the recording must be preserved by the district for at least two years after the date of the meeting and may not be released to any individual other than an official officer of the governmental body except as provided under section 551.104(c). Gov't Code 551.104(a); see Attorney General Opinion No. JC-0120 (1999). Furthermore, the release of the tape recording in violation of section 551.104(c) constitutes a Class B misdemeanor and may additionally result in civil penalties.(3) Gov't Code 551.146(a), (b). Therefore, we conclude that the district must withhold the copy of the tape recording under chapter 551 of the Government Code and section 552.101 of the Government Code.

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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/ch

Ref: ID# 134651

cc: Ms. Lana Stead
4 Cielo Del Este
Anthony, New Mexico 88021
 


Footnotes

1. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."

2. In this ruling, we express no opinion as to whether section 7.057 of the Education Code concerning appeals provides lawful authority for disclosure of the tape recording to the Commissioner of Education.

3. Section 551.146(c) provides a defense to criminal prosecution and an affirmative defense to a civil action where (1) the defendant had good reason to believe the disclosure was lawful; or (2) the disclosure was the result of a mistake of fact concerning the nature or content of the certified agenda or tape recording.
 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer


Home | ORLs