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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 17, 2002

Mr. Kevin D. Pagan
Assistant City Attorney
City of Alamo
423 North Tower Road
Alamo, Texas 78516

OR2002-7229

Dear Mr. Pagan:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173852.

The City of Alamo (the "city") received a request for information. You claim that the requested information, or portions thereof, is excepted from disclosure pursuant to section 552.101 of the Government Code. We have considered your claimed exception to disclosure.

We note that section 552.301(e) of the Government Code provides that a governmental body that requests an attorney general decision under section 552.301(a) must, within a reasonable time, but not later than the fifteenth business day after the date of receiving the written request, submit to the attorney general, among other items, a copy of the written request for information and a signed statement as to the date on which the written request was received by the governmental body or evidence sufficient to establish that date. See Gov't Code 552.301(e). To date, the city has not submitted to us a copy of the written request for information or a signed statement as to the date on which the written request was received by the city or evidence sufficient to establish that date. Therefore, we find that the city has failed to comply with section 552.301 of the Government Code in requesting a decision from our office with regard to the requested information.

Because the city failed to comply with the procedural requirements of section 552.301 in requesting this decision, the information at issue is now presumed public. See Gov 't Code 552.302; see also 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 city must demonstrate a compelling interest in order to overcome the presumption that the requested information is now public. See id. Normally, a compelling interest is demonstrated when some other source of law makes the requested information confidential or when third party interests are at stake. See Open Records Decision No. 150 at 2 (1977). Although the city claims that the requested information, or portions thereof, is excepted from disclosure pursuant to section 552.101 in conjunction with the common-law informer's privilege, we note that a claim under the informer's privilege may be waived by a governmental body since the privilege belongs to the government. See Open Records Decision No. 549 at 6 (1990). In this instance, the city waived its interest in this claim by failing to comply with the requirements of section 552.301(e) of the Government Code. Therefore, we conclude that the informer's privilege cannot provide a compelling interest in this instance. Because the city does not claim that the requested information, or portions thereof, is otherwise excepted from disclosure, we conclude that the city must release the entirety of the submitted information to the requestor.

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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division
RJB/lmt
Ref: ID# 173852
Enc. Submitted documents

c: Mr. James Shelton
332 Diana
Alamo, Texas 78516
(w/o enclosures)


 

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