Open Records Memorandum Rulings

Recognizing that open government works best when rulings can be promptly issued, the Open Records Division (ORD) has instituted a process to issue certain types of rulings more quickly. As part of this process, ORD is issuing abbreviated, or memorandum, rulings in certain instances. When ORD receives a request for a ruling, it is first assessed by staff to determine the level of difficulty that bears a direct relationship to the amount of time needed to rule on the request. Most requests for ruling that ORD receives require more time to resolve and require a complete explanation of the circumstances involved, the records at issue and the applicable law. However, those requests that relate to information that is often requested and present no new or difficult issues are ruled on as quickly as possible.

To ensure that the affected parties receive a ruling quickly, the new memorandum rulings identify as briefly as possible the ruling requested, the documents at issue and the ruling as to the availability of the information. By issuing some rulings in this manner, administrative resources are held to a minimum and rulings are issued more quickly. In this process, however, it is important that the public and governmental bodies understand the laws that form the basis for a memorandum ruling. To aid in a full understanding of this office's rulings, below you will find descriptions of exceptions to the Public Information Act that can allow, in certain circumstances, governmental bodies to withhold from public disclosure certain types of information.

Letter rulings are limited to the particular records at issue in a request and limited to the facts as presented to us; therefore, a ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

The issuance of a 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 a ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge a 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 a 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 a 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 a letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of a 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 a 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 (512) 475-2497.

If the governmental body, the requestor, or any other person has questions or comments about a ruling, they may contact our office. A third party may challenge a 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.

Government Code Section 552.101

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes and common-law privacy.

Criminal History Information
Where an individual's criminal history information has been compiled by a governmental entity, the information takes on a character that implicates the individual's right to privacy. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). In instances in which a requestor asks for all information concerning a certain person, that individual's right to privacy is implicated. Thus, where a named individual is a possible suspect, a governmental body must withhold this information under common law privacy as encompassed by section 552.101 of the Government Code. See id.

Juvenile Law Enforcement Records
Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007 of the Family Code. The relevant language of section 58.007(c) reads as follows:

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.

If the information at issue involves juvenile conduct that occurred after September 1, 1997, and it does not appear that any of the exceptions in section 58.007 apply, the requested information is confidential pursuant to section 58.007(c) of the Family Code and must be withheld under section 552.101 of the Government Code.

Records of Alleged or Suspected Abuse or Neglect of a Child.

Section 261.201 of the Family Code reads in part as follows:

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

If the requested information consists of reports, records, and working papers used or developed in an investigation made under chapter 261 of the Family Code, and the investigating agency has cited to no rule it has adopted with regard to the release of this type of information, the information must not be released to the requestor. See Open Records Decision No. 440 at 2 (1986) (construing predecessor statute). If an investigation has been referred to the Department of Protective and Regulatory Services (the "department"), a parent or legal representative of the child who is a requestor may be entitled to access to the department's records. Section 261.201(g) of the Family Code provides that the department, upon request and subject to its own rules:

shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect information concerning the reported abuse or neglect that would otherwise be confidential under this section if the department has edited the information to protect the confidentiality of the identity of the person who made the report and any other person whose life or safety may be endangered by the disclosure.

Fam. Code § 261.201(g).

For further explanation of section 552.101, please see the information beginning on page 69 of the Public Information Act Handbook.

Government Code Section 552.103

Section 552.103 provides as follows:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.
. . . .
(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

A governmental body has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). A governmental body must meet both prongs of this test for information to be excepted under 552.103(a).

To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. In addition, this office has concluded that litigation was reasonably anticipated when the potential opposing party took the following objective steps toward litigation: filed a complaint with the Equal Employment Opportunity Commission, see Open Records Decision No. 336 (1982); hired an attorney who made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open Records Decision No. 346 (1982); and threatened to sue on several occasions and hired an attorney, see Open Records Decision No. 288 (1981). Open Records Decision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). Further, the fact that a potential opposing party has hired an attorney who makes a request for information does not establish that litigation is reasonably anticipated. Open Records Decision No. 361 (1983).

Generally, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

For further explanation of section 552.103, please see the information beginning on page 84 of the Public Information Act Handbook.

Government Code Section 552.104

Section 552.104 states that information is excepted from required public disclosure if release of the information would give advantage to a competitor or bidder. The purpose of this exception is to protect the interests of a governmental body usually in competitive bidding situations. See Open Records Decision No. 592 (1991). This exception protects information from public disclosure if the governmental body demonstrates potential harm to its interests in a particular competitive situation. See Open Records Decision No. 463 (1987). Generally, section 552.104 does not except bids from public disclosure after bidding is completed and the contract has been awarded. See Open Records Decision No. 541 (1990).

For further explanation of section 552.104, please see the information beginning on page 88 of the Public Information Act Handbook.

Government Code Section 552.108

Section 552.108(a)(1)
Section 552.108 of the Government Code states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). Information pertaining to a pending case is one example where release of that information "would interfere with the detection, investigation, or prosecution of crime" and may therefore be withheld. Id.

Section 552.108(a)(2)
Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded and the final result was something other than a conviction or deferred adjudication.

However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Thus, in instances where section 552.108 is applicable, with the exception of the basic front page offense and arrest information, a governmental body may withhold the requested information.

I. TYPES OF INFORMATION AVAILABLE TO THE PUBLIC

II. TYPES OF INFORMATION PROTECTED BY SECTION 552.108

See Open Records Decision No. 127 (1976).

For further explanation of section 552.108, please see the information beginning on page 97 of the Public Information Act Handbook.

Government Code Section 552.130

Section 552.130 provides in relevant part:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or]
(2) a motor vehicle title or registration issued by an agency of this state[.]

This exception requires a governmental body to withhold Texas motor vehicle information such as the Texas driver's license number, vehicle identification number, the type/class of license, copy of the license and license plate number under section 552.130.

For further explanation of section 552.130, please see the information beginning on page 148 of the Public Information Act Handbook.

Revised: June 20 2008

Open Records Memorandum Rulings

on this page:

Government Code Section 552.101

Government Code Section 552.103

Government Code Section 552.104

Government Code Section 552.108

Government Code Section 552.130

Publications:

Statutes: