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CITY OF HOUSTON
BIH
white
Legal Department Mayor
Arturo Michel^ City AttorneyLegal DepartmentP.O. Box 368
June
16, 2009
Houston,
Texas 77001-0368
City Hall Annex900 Bagby, 4th Floor
The Honorable Greg Abbott
Houston, Texas 77002
Texas Attorney General
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713.247.2000
P.O. BOX 12548
F.
713.247.1017
Austin,
Texas 78711-2548
vww.houstontx.gov
Attention:Open Records Division
Re:
AG ID# 351739; Texas Public Information request dated May 26,2009, fromJennifer Peebles
for
information pertaining
to
the Houston Airport System,and the Houston Airport System Development Corporation.Dear General Abbott:This
is
a
follow-up
to my
letter dated June
8,
2009
(Exhibit 1-A).
The
City
of
Houston
("City")
received the above-referenced request on May 26,2009
(Exhibit 1
). The City believes responsiveinformation
(Exhibits
2
and 3)
is excepted
from
public disclosure under sections 552.101,552.110,552.117, and 552.130
of
the Government Code. The City notes that the responsive informationis voluminous; thus
the
City
has
enclosed
a
representative sample
(Exhibits
2
and
3)
for
yourconsideration.
See
Open Records Decision
Nos. 499
(1988),
497
(1988)
(the
representativesample submitted is truly representative of the requested records as a whole). The Houston AirportSystem (HAS) advises that it will provide the requester with a portion of the requested information.The City notes that the requestor seeks "[rjecords indicating how much the Houston Airport SystemDevelopment Corp. paid
all
of
its
employees between Jan. 1, 2008,
and
Dec. 31, 2008. Theserecords should indicate the employees name, the amount of their
pay,
their job title or classificationand
the
unit, division
or
office of the corporation for which they work." The City notes that
it
doesnot have any responsive information pertaining to this request. The HAS Development Corporation(HASDC)
is
a
Texas non-profit corporation that was incorporated
on
December 14, 2001.
See
Exhibit
A,
which
is a
non-responsive document.
On
March
6,
2002,
the
City entered into
a
Technical Services Agreement with HASDC, which enumerates the services that HAS shall provideto HASDC
in
exchange
for for a
certain amount
of
money.
See
Exhibit
B,
which
is a
non-
responsive document.
The
Public Information
Act
("Act")
does
not
apply
to
private businessessimply because they provide goods
or
services under
a
contract with
a
governmental body.
See
Open Records Decision No. 1 (1973).
Section 552.101 Texas Government Code
Section 552.101
of
the Government Code excepts from disclosure "information considered
to be
confidential
by
law, either constitutional, statutory,
or
by
judicial decision."
TEX.
GOV'T CODE
§
552.101.
This section encompasses information protected
by
other statutes.
Council Members: Toni Lawrence Jarvis Johnson Anne Clutterbuck Wanda Adams Mike Sullivan M. J. Khan Pam Holm Adrian GarciaJamesG. Rodriguez Peter Brown Melissa Noriega Sue Lovell Ronald C. Green Jolanda
"Jo"
Jones Controller: Annise D. Parker
The Honorable Greg AbbottJune 16, 2009Page 2
Transportation and Safety Administration
The requestor seeks the following information: "[rjecords indicating how much the Houston AirportSystem paid all of its employees between Jan. 1, 2009, and Dec.
31,
2008. These records shouldindicate the employees name, the amount of their pay, their job title or classification and the unit,
division,
or office of the airport system for which they work." See
Exhibit 1.
Please note that the City has
not
attached the responsive documents that relate to this exception,as
any
release of the requested information is governed by federal statutes and regulations whichprohibit release to any person or agency, including your
office.
The responsive documents pertainto aviation employees and their employment with the City of Houston Airport System. Therefore,the City will forward the above-referenced request to Dyann Whittaker, the Supervisory AttorneyAdvisor of the United States Department of Homeland Security ("the Department"), and we willawait the Department's directives since it may determine that the release of this information couldcompromise the measures designed for the security and safety at City's airports for airport
personnel,
the traveling public, and the citizens of Houston. Therefore, with respect to theinformation at issue, the City believes that the requested information is excepted from disclosureunder § 552.101 of the Government Code in conjunction with the federal Aviation andTransportation Security Act ("ATSA"), 49
U.S.C.
§§114(a), (b)(1). As federal law preempts statelaw to the extent that state law actually conflicts with federal law, we request that your officeconsider the City's arguments. See
English v. GeneralElec. Co.,
496 U.S. 72, 79 (1990); see
alsoLouisiana Pub.
Serv.
Comm'n v. FCC,
476 U.S. 355, 369 (1986).Effective November
19,
2001,
Congress enacted the
ATSA,
which created the TSA, a new agencywithin the United States Department of Transportation
("DOT")
headed by the Under Secretary ofTransportation for Security (the "Under Secretary"). See 49
U.S.C.§§
114(a), (b)(1). The ATSAprovides that, by November 19,2002, the responsibility for inspecting persons and property carriedby aircraft operators and foreign air carriers will be transferred from the FAA Administrator to theUnder Secretary as head of the TSA. These responsibilities include carrying out the requirementsof chapter 449 of title 49 of the United States Code, which pertain to civil aviation security. See 49
U.S.C.
§§ 114(d)(1). Section 40119 of title 49, a provision that formerly applied to the FAAAdministrator, now states:Notwithstanding [the Federal Freedom of Information Act (the "FOIA"),] the Under Secretary shallprescribe regulations prohibiting disclosure of information obtained or developed in carrying outsecurity or research and development activities ... if the Under Secretary decides disclosing theinformation would-(A) be an unwarranted invasion of personal privacy;(B) reveal a trade secret or privileged or confidential commercial or financialinformation; or(C) be detrimental to the safety of passengers in transportation.49
U.S.C.
§§40119(b)(1).The language of this provision authorizes the TSA's Under Secretary to prescribe regulations"prohibiting disclosure of information obtained or developed in carrying out security or research and
The Honorable Greg AbbottJune 16, 2009Page 3
development activities." It authorizes the Under Secretary to prescribe regulations that prohibitdisclosure of information requested not only under the FOIA, but also under other disclosurestatutes.
Cf. Public Citizen, Inc. v. Federal Aviation Administration,
988 F.2d 186, 194 (D.C. Cir.1993) (former section 40119 authorized FAA Administrator to prescribe regulations prohibitingdisclosure of information under other statutes as well as under the FOIA). Thus, the UnderSecretary is authorized by section 40119(b)(1) to prescribe regulations that prohibit disclosure ofinformation requested under chapter 552 of the Government Code, the Texas Public InformationAct (the "Act").
PLJ
rsuant to the mandate and authority of section 40119, the DOT'S FAA and TSA jointly publishednew regulations pertaining to civil aviation security, which are found in title 49 of the Code ofFederal Regulations and which took effect February 17, 2002. See 67 Fed. Reg. 8340. Section
1520.1
(a) of these regulations explains that the regulations govern the release, by the TSA "andby other persons, of records and information [sic] that has been obtained or developed duringsecurity activities or research and development activities." 49
C.F.R.
§§ 1520.1(a) (emphasisadded). Such "other persons" to which these regulations apply include local governmental entities.See 49
U.S.C.
§§ 40102(a)(32) ("person" includes "a governmental authority"); see
also
67 Fed.
Reg.
at 8342 (definition of "person" is based on 49
U.S.C.
§§ 40102). Thus, the regulations in title49 of the Code of Federal Regulations apply to the City.Section 1520.3(a) of title 49 provides, in part, that, "notwithstanding the [FOIA] or other laws,"records that meet the definition in section 1520.7 are not available for public inspection or copying,nor is information contained in those records to be released to the public. 49
C.F.R.
§§ 1520.3(a).Such information is defined to include
"[a]ny
information that the TSA has determined may reveala systemic vulnerability of the aviation system, or a vulnerability of aviation facilities, to attack." Id.§§ 1520.7(h). This includes, but is not limited
to,
"details of inspections, investigations, and allegedviolations and findings of violations." See
id.
As to the release of information by persons other
than
the TSA, section 1520.5 provides that thosecovered by the regulation, which, among others, includes airport and aircraft operators, theiremployees, contractors, and agents, "must restrict disclosure of and access to sensitive securityinformation ... to persons with a need to know and must refer requests by other persons for suchinformation to TSA or the applicable DOT administration!.]" Id. §§ 1520.5(a) (emphasis added).Based on this statutory scheme, your office recently opined that the decision to release or withholdairport security related information is not for the Office of the Attorney General or the City to make,but rather a decision for the Under Secretary as head of the TSA. See Open Records Letter No.2002-2623 at 3 (2002);
English
v.
GeneralElec. Co.,
496 U.S. 72, 79 (1990) (state law preemptedto extent it actually conflicts with federal law); see
also Louisiana Pub.
Serv.
Comm'n v. FCC,
476U.S. 355, 369 (1986) (federal regulation enacted by agency acting within scope of itscongressionally delegated authority may preempt state regulation). Therefore, we will refer thematter to the TSA.
Tax Return Information
Portions of Exhibit 2 consist of a former City employee's W-4 form. Section 6103(a) of Title 26of the United States Code renders tax return information confidential. "Tax return information" isdefined as "a taxpayer's identity, the nature, source, or amount of income, payments, tax withheld,deficiencies, over assessments or tax payments ... or other data, received by, recorded by,prepared by, furnished
to,
or collected by Secretary [of the Internal Revenue Service] with respect
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