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Arturo Michel City Attorney Legal Department P.O. Box 368
June 16, 2009
T h e Honorable Greg Abbott
Houston, Texas 77001-0368
City Hall Annex 900 Bagby, 4th Floor Houston, Texas 77002
Texas Attorney General
_ _. ,.. A~c,o P . O . BOX 12548 Austin, Texas 78711-2548
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T. 713.247.2000 F. 713.247.1017 vww.houstontx.gov
Open Records Division AG ID# 351739; Texas Public Information request dated May 26,2009, from Jennifer 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 responsive information (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 information is voluminous; thus the City has enclosed a representative sample (Exhibits 2 and 3) for your consideration. See Open Records Decision Nos. 499 (1988), 497 (1988) (the representative sample submitted is truly representative of the requested records as a whole). The Houston Airport System (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 System Development Corp. paid all of its employees between Jan. 1, 2008, and Dec. 31, 2008. These records should indicate the employees name, the amount of their pay, their job title or classification and the unit, division or office of the corporation for which they work." The City notes that it does not 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 provide to HASDC in exchange for for a certain amount of money. See Exhibit B, which is a nonresponsive document. The Public Information Act ("Act") does not apply to private businesses simply 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.
Toni Lawrence Jarvis Johnson Anne Clutterbuck Wanda Adams Mike Sullivan M. J. Khan James G. Rodriguez Peter Brown Melissa Noriega Sue Lovell Ronald C. Green Jolanda "Jo" Jones
Pam Holm Adrian Garcia Controller: Annise D. Parker
The Honorable Greg Abbott June 16, 2009 Page 2
Transportation and Safety Administration The requestor seeks the following information: "[rjecords indicating how much the Houston Airport System paid all of its employees between Jan. 1, 2009, and Dec. 31, 2008. These records should indicate 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 which prohibit release to any person or agency, including your office. The responsive documents pertain to 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 Attorney Advisor of the United States Department of Homeland Security ("the Department"), and we will await the Department's directives since it may determine that the release of this information could compromise 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 the information at issue, the City believes that the requested information is excepted from disclosure under § 552.101 of the Government Code in conjunction with the federal Aviation and Transportation Security Act ("ATSA"), 49 U.S.C. §§114(a), (b)(1). As federal law preempts state law to the extent that state law actually conflicts with federal law, we request that your office consider the City's arguments. See English v. GeneralElec. Co., 496 U.S. 72, 79 (1990); see also Louisiana 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 agency within the United States Department of Transportation ("DOT") headed by the Under Secretary of Transportation for Security (the "Under Secretary"). See 49 U.S.C.§§ 114(a), (b)(1). The ATSA provides that, by November 19,2002, the responsibility for inspecting persons and property carried by aircraft operators and foreign air carriers will be transferred from the FAA Administrator to the Under Secretary as head of the TSA. These responsibilities include carrying out the requirements of 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 FAA Administrator, now states: Notwithstanding [the Federal Freedom of Information Act (the "FOIA"),] the Under Secretary shall prescribe regulations prohibiting disclosure of information obtained or developed in carrying out security or research and development activities . . . if the Under Secretary decides disclosing the information would(A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; 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 Abbott June 16, 2009 Page 3
development activities." It authorizes the Under Secretary to prescribe regulations that prohibit disclosure of information requested not only under the FOIA, but also under other disclosure statutes. 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 prohibiting disclosure of information under other statutes as well as under the FOIA). Thus, the Under Secretary is authorized by section 40119(b)(1) to prescribe regulations that prohibit disclosure of information requested under chapter 552 of the Government Code, the Texas Public Information A c t (the "Act"). PLJ rsuant to the mandate and authority of section 40119, the DOT'S FAA and TSA jointly published new regulations pertaining to civil aviation security, which are found in title 49 of the Code of Federal 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 "and by other persons, of records and information [sic] that has been obtained or developed during security activities or research and development activities." 49 C.F.R. §§ 1520.1(a) (emphasis added). 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 title 49 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 reveal a 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 alleged violations and findings of violations." See id. As t o the release of information by persons other than the TSA, section 1520.5 provides that those covered by the regulation, which, among others, includes airport and aircraft operators, their employees, contractors, and agents, "must restrict disclosure of and access to sensitive security information . . . to persons with a need to know and must refer requests by other persons for such information 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 withhold airport 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 preempted to extent it actually conflicts with federal law); see also Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986) (federal regulation enacted by agency acting within scope of its congressionally delegated authority may preempt state regulation). Therefore, we will refer the matter 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 26 of the United States Code renders tax return information confidential. "Tax return information" is defined 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
The Honorable Greg Abbott June 16, 2009 Page 4 to a return ... or the determination of the existence, or possible existence, of liability... for any tax, ... penalty or offense[.]" See 26 U.S.C. §6103(b)(2)(A). Section 6103(c) provides that, a unless the Secretary of Treasury determines that disclosure would seriously impair tax administration, tax record information may be released to any person or persons as the taxpayer may designate in a consent to such disclosure. See 26 U.S.C. §6103(c) . In addition, your office has ruled that W-4 forms are confidential. See Open Records Decision No. 600 (1992). In this instance, the requestor is neither the taxpayer nor the taxpayer's designee. A s such, the W-4 form contained in Exhibit 2 is confidential and should be withheld under Section 61 03 in conjunction with Section 552.101 of the Government Code.
Personal Financial Information
Section 552.101 protects from public disclosure information coming within the common-law right to privacy. Industrial Found, v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert, denied, 430 U.S. 931 (1977). Your office has found that personal financial information not relating to the financial transaction between an individual and a governmental body is generally intimate and embarrassing. See Open Records Decision Nos. 600 (1992) (public employee's withholding allowance certificate, designation of beneficiary of employee's retirement benefits, direct deposit authorization, and employee's decisions regarding voluntary benefits programs, among others, protected under common-law privacy), 545 (1990). Some of the financial information at issue pertains to personal financial decisions that do not pertain to a transaction with the individual concerned and a governmental body. Additionally, the information revealing these personal decisions is not of legitimate concern to the public in this instance. Accordingly, the City believes that the information it has marked in Exhibit 2 is confidential pursuant to section 552.101 of the Government Code in conjunction with common-law privacy. Section 552.110 of the Government Code Exhibit 3 contains responsive information that may include confidential commercial or financial information. The City has notified the third-parties whose proprietary information is requested, that in order to protect any of the requested information from public disclosure, the respective parties must submit a legal briefing justifying withholding of the information to your office. Please note that the City will not raise any arguments on behalf of the third-party individuals. However, the City has enclosed Exhibit 3, which contains the responsive information that may include confidential commercial or financial information. Section 552.117 of the Government Code Section 552.117 of the Government Code excepts from required public disclosure "information that relates to the home address, home telephone number, or social security number" of "a current or former official or employee of a governmental body" who has elected to keep this information confidential pursuant to section 552.024 of the Texas Government Code. See TEX. GOV'T CODE 552.117(a). The responsive information, attached as Exhibit 2, contains home addresses, home telephone numbers, social security numbers and personal family information of a former City employee. The said employee has made an election under section 552.024 to keep his home address, telephone numbers, social security number, and personal family information confidential.
The Honorable Greg Abbott June 16, 2009 Page 5
Accordingly, the City believes the highlighted information in Exhibit 2 is excepted from public disclosure pursuant to section 552.117 of the Government Code. Section 552.130 of the Government Code T h e City notes that section 552.130(a) of the Government Code requires the City to withhold information that relates to a motor vehicle operator's or driver's license issued by an agency of this state and a license plate number and vehicle identification number ("VIN") relating to a title or registration issued by an agency of the state. TEX. GOV'T CODE ANN. § 552.130(a) (Vernon Supp. 2000). The highlighted portions of Exhibit 2 contain Texas motor vehicle record information that must be withheld under section 552.130(a) of the Government Code. The City respectfully requests an opinion on this matter. Please do not hesitate to contact me at 832.393.6491 if you need additional information. Sincerely,
Evelyn W. Njuguna Assistant City Attorney EWN:jm Enclosures cc: Jennifer Peebles Deputy Editor, Texas Watchdog via email: firstname.lastname@example.org (w/o Exhibits) Beverly Roach, PIO, HAS Randy Rivin, LGL (w/o Exhibits) Hank Coleman, General Counsel, HASDC 1803 South Blvd. Houston, Texas 77098 (w/o Exhibits except Exhibit 3)
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