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October 2, 2000

Mr. J. David Dodd, III
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
Attorneys & Counselors at Law
1800 Lincoln Plaza, 500 North Akard
Dallas, Texas 75201

OR2000-3783

Dear Mr. Dodd:

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# 139773.

The City of Lancaster (the "city"), which you represent, received a request for the police and fire audit for 1998. You inform this office that the fire audit has been released to the requestor. You claim, however, that the police audit is excepted from disclosure under sections 552.101, 552.103, and 552.108 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information.

We note that you have failed to timely submit a request for a decision as required by Government Code section 552.301. Subsections 552.301(a) and (b) provide as follows:

(a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the [Act's] exceptions . . . must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions.

(b) The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request.

In this case, this office did not receive the request for a decision within the ten business day period mandated by section 552.301(b). Because the request for a decision was not timely received, the requested information is presumed to be public information. Gov't Code 552.302.

In order to overcome the presumption that the requested information is public information, a governmental body must provide compelling reasons why the information should not be disclosed. Id.; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ); Open Records Decision No. 630 (1994). The exceptions to disclosure you claim, sections 552.103, 552.108, and 552.111, do not provide compelling reasons for withholding the information. See, e.g., Open Records Decision Nos. 150 (1977) ("compelling reason" for withholding information is if information is made confidential by another source of law or affects third party interests), 630 (1994) (protection of attorney-client privilege may be waived by governmental body), 473 (1987) (section 552.103 is not compelling reason to overcome presumption of openness), 470 (1987) (protection of predecessor statute to section 552.111 may be waived by governmental body). Accordingly, you must release the requested information.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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,

Julie Reagan Watson
Assistant Attorney General
Open Records Division

JRW/pr

Ref: ID# 139773

Encl. Submitted documents

cc: Mr. Rick Boone
c/o Lancaster Police Department
1501 North Dallas
Lancaster, Texas 75134
(w/o enclosures)


 

Footnotes

1. You contend that the documents in question are excepted from disclosure as attorney work product under Government Code section 552.101. Section 552.101, however, is not applicable to the attorney work product privilege. See Open Records Decision No. 575 at 2 (1990). The privilege is properly asserted under section 552.111. See Open Records Decision No. 647 (1996) (citing Owens-Corning Fiberglas v. Caldwell, 818 S.W.2d 749 (Tex. 1991)).
 

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