Open Records Decision No. 293
December 8, 1981

	Re:  Open Records request for report of review of university biology department

Mr. Howard W. Smith, Jr.
President Ad Interim
North Texas State University
Denton, Texas  76203

Dear Mr. Smith:

	Your request for our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., concerns a report prepared by three professors unassociated with North Texas 
State University whom you engaged to study the university's biology department.  You 
advise that continuing discord within the department prompted you to hire these 
professors to assess the situation and to advise you with respect to your role in 
administering the department's affairs.  The professors' final report, entitled “Report of 
the Review Team of the Department of Biological Sciences,” is a ten-page compilation 
of their findings and their recommendations for improving the functioning of the 
department.  A significant portion of it centers upon the part played by certain professors 
in the biology department in creating and/or exacerbating the department's problems.

	One of the professors discussed in the report has requested a copy of it.  You base 
your claim that it may be withheld from disclosure upon sections 3(a)(1), 3(a)(2), 
3(a)(3), and 3(a)(11) of the Open Records Act.

	Section 3(a)(11) of the Open Records Act excepts from disclosure:

inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than one in litigation with 
the agency.

This section, which is patterned after a similar provision in the Federal Freedom of 
Information Act, 5 U.S.C. section 552(b)(5), is:

designed to protect from disclosure advice and opinion on policy 
matters and to encourage open and frank discussion between 
subordinate and chief concerning administrative action.

Attorney General Opinion H-436 (1974); Open Records Decision Nos. 231, 222 (1979); 
213, 211, 209, 197, 196, 192 (1978).  It is intended to protect the internal deliberative 
process of the public's decisionmakers.  Open Records Decision No. 209 (1978).  As a 
federal court said when construing the Freedom of Information Act counterpart:

	It generally has been accepted that exemption five incorporates 
the governmental privilege, developed in discovery cases, to protect 
documents containing advisory opinions and recommendations or 
reflecting deliberations comprising the process by which 
government policy is formulated.... [T]he courts have required 
disclosure of essentially factual material but allowed agencies to 
withhold documents which reveal their deliberative or policy-
making processes.

Mead Data Central, Inc. v. U.S. Department of Air Force, 566 F.2d 242, 256 (D.C. Cir. 
1977).

	Section 3(a)(11) applies where, as here, the information in question is prepared 
by outside consultants, rather than employees of the agency.  Open Records Decision No. 
192 (1978).

	The portion of the report preceding the section entitled “Summary of Findings” 
(page 4) comes within none of the exceptions you cite and must be released.  In our 
opinion, however, the remainder of it can only be characterized as a highly subjective 
overall assessment of the department which clearly fits into the “advice, opinion, and 
recommendation” mold.  It discusses the department's internal problems, articulates the 
impressions of the review team and others in the biology department concerning certain 
biology professors, and assesses the extent to which those professors caused, contributed 
to, and/or alleviated departmental problems.  It also contains specific recommendations 
for improving the department both internally and in terms of its national reputation.

	We believe this is precisely the kind of information which section 3(a)(11) is 
designed to embrace.  Accordingly, you may withhold everything in the report beginning 
with the “Summary of Findings.”  Our conclusion renders it unnecessary to discuss the 
other section 3(a) exceptions you cite, except to say that none would authorize you to 
withhold any additional material.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gray III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood