CITY OF HOUSTON BIH white

Legal Department Mayor

Arturo Michel
^ City Attorney
Legal Department
P.O. Box 368
June 16, 2009 Houston, Texas 77001-0368
City Hall Annex
900 Bagby, 4th Floor
T h e Honorable Greg Abbott Houston, Texas 77002
Texas Attorney General T ,.,,,„ _ „„„„
_ _. ,.. A~c,o T. 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, 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 non-
responsive 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.

Council Members: Toni Lawrence Jarvis Johnson Anne Clutterbuck Wanda Adams Mike Sullivan M. J. Khan Pam Holm Adrian Garcia
James G. Rodriguez Peter Brown Melissa Noriega Sue Lovell Ronald C. Green Jolanda "Jo" Jones 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: jennifer@texaswatchdog.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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