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December 1, 2000

Mr. Scott A. Kelly
Deputy General Counsel
Office of General Counsel
The Texas A&M University System
301 Tarrow, 6th Floor
College Station, Texas 77840-7896

OR2000-4568

Dear Mr. Kelly:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 143397.

Texas A&M University (the "university") received a request for copies of all submitted Design Build Proposals for three specified projects. Although you do not raise an exception to disclosure on behalf of the university, you request a decision pursuant to section 552.305 of the Government Code which applies when a person's privacy or property interests may be involved. See Gov't Code 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Public Information Act in certain circumstances). You have submitted copies of letters notifying C.C. Carlton Industries, Inc., W.M. Klunkert, Inc., Kelly Burt Dozer, Inc., TexCon General Contractors, MBC Management, and O'Malley Engineers, Inc. about the request as required by section 552.305(d). As of the date of this letter, we have received comments from W.M. Klunkert, Inc. but have not received comments from any of the other companies.

Pursuant to section 552.301(b) of the Government Code, a governmental body must ask for a decision and state the exceptions that apply no later than the tenth business day after the date of receiving the written request. The university received the request on September 18, 2000 and, therefore, had until October 2, 2000 to request a decision. Because the request for a decision was faxed on November 9, you failed to request a decision within the ten business day period mandated by section 552.301(b).

Further, pursuant to section 552.301(e)(1), a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) 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, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code 552.301(e)(1)(A)-(D). You have not submitted a copy of the specific information requested or representative samples of the information.(1) Therefore, you have failed to comply with section 552.301 of the Government Code.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code 552.302; 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 pursuant to statutory predecessor to Gov't Code 552.302); Open Records Decision No. 319 (1982). Although the presumption of openness can be overcome by showing that information affects third party interests, you have not submitted the information, so we have no basis for finding it confidential. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Thus, we have no choice but to order the information released per section 552.302. If you believe the information is confidential and may not lawfully be released, you must challenge the ruling in court as outlined below. 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 Hadassah Schloss at 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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/seg

Ref: ID# 143397

cc: Mr. Bill Thomas
Young Contractors, Inc.
P. O. Box 674
Bryan, Texas 77808

Mr. Matt Klunkert
President
W.M. Klunkert, Inc.
4090 Raymond Stotzer Parkway
College Station, Texas 77845

Mr. Craig Carlton
C.C. Carlton Industries, Inc.
612 Brazos, Suite 210
Austin, Texas 78701

Mr. Kelly Burt
Kelly Burt Dozer, Inc.
6217 Hwy. 21 East
Bryan, Texas 77801

Mr. Carey D. Smith
TexCon General Contractors
1707 Graham
College Station, Texas 77845

Mr. Paul Malek
MBC Management
540 Graham Road
College Station, Texas 77845

Mr. Craig Kankel
O'Malley Engineers, Inc.
1306 North Park
Brenham, Texas 77834


 

Footnotes

1. We note that you state that you are not submitting the proposals because you do not know what information maybe at issue. However, in order to comply with section 552.301, the university must submit the requested information which is proposals or a representative sample of the requested proposals.
 

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