Open Records Decision No. 320
August 20, 1982

	Re:  Whether certain documents held by the Adjutant General's Department are 
public under the Open Records Act

Major General Willie L. Scott
TexARNG, The Adjutant General
P. O. Box 5218
Austin, Texas  78763

Dear General Scott:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether information obtained in two investigations of employee conduct 
conducted by the Adjutant General's office is available to the public.  You suggest that 
portions of the material are excepted from disclosure under sections 3(a)(1), 3(a)(2), 
3(a)(3), 3(a)(8) and 3(a)(11) of the Act.

	The first series of documents relates to a report, dated October 24, 1979, of an 
investigation into allegations and counter-allegations against various personnel of the 
Texas National Guard.  You have marked the relevant portions of these documents as 
“enclosure 5c.”  Parties to the litigation relating to this investigation have already 
inspected these records pursuant to court order.  As a result, section 3(a)(3) of the Open 
Records Act may no longer be applied to except the information from disclosure.

	Neither is the information excepted under sections 3(a)(1) or 3(a)(2).  Under 
section 3(a)(1), which excepts “information deemed confidential by law,” we have 
recognized both constitutional and common law privacy.  None of the information 
submitted, however, satisfies the requirements imposed for either kind of privacy.  Open 
Records Decision No. 260 (1980).  Section 3(a)(2), which requires a showing that 
disclosure of particular information about public employees would constitute “a clearly 
unwarranted invasion of personal privacy,” is also inapplicable to the information 
submitted.  Open Records Decision No. 260 (1980).

	Although section 3(a)(8), which excepts law enforcement records, is applicable to 
the Texas National Guard, Open Records Decision No. 172 (1977), the availability of the 
exception is greatly restricted when a file has been administratively closed.  Open 
Records Decision No. 216 (1978).  You have not suggested that access to the information 
will “unduly interfere with law enforcement and crime prevention,” and we conclude 
therefore that the information at issue here is not excepted from disclosure under section 
3(a)(8).  Open Records Decision No. 252 (1980).  We note, however, that you have also 
raised the informer's privilege as incorporated into section 3(a)(1) of the Open Records 
Act.  We will discuss this privilege subsequently in this decision.

	A large portion of the information marked in enclosure 5c is, however, excepted 
under section 3(a)(11) of the Act as an “interagency memorandum.”  That exception is 
applicable to the information submitted to the extent that it consists of “advice, opinion 
and recommendations.”  Open Records Decision Nos. 273 (1981); 239 (1980).  
Accordingly, we have marked those parts of the documents in enclosure 5c which may be 
withheld under section 3(a)(11).

	The second series of documents consists of three marked portions of enclosure 5c 
and a report of an investigation, dated February 27, 1978, into irregularities related to 
reports submitted by an individual in the Texas National Guard.  Portions of the report 
contain the advice, opinion and recommendations of the investigator, and, as noted 
above, are excepted from disclosure under section 3(a)(11).  Part of the report, as well as 
the marked portions of enclosure 5c, is also excepted under section 3(a)(1) of the Act, as 
information deemed confidential by the informer's privilege.  In Open Records Decision 
No. 172 (1977), this office held that a report of an investigation into the conduct of a 
former officer of the Texas National Guard was excepted from disclosure under section 
3(a)(1), “as tending to reveal the identity of informants.”  The decision noted that, while 
the privilege normally applies only to the identity of an informant, and not to the contents 
of his communication, the content itself is privileged when it would tend to reveal the 
identity of the informant.

	As in Open Records Decision No. 172, it appears that disclosure of the informers' 
statements would here tend to reveal their identity.  Thus, in accordance with the 
reasoning of that decision, we believe that the entire report dated February 27, 1978, 
together with the three relevant portions of enclosure 5c, may be withheld from 
disclosure under section 3(a)(11), as advice, opinion and recommendations, or under 
section 3(a)(1), as information deemed confidential by the informer's privilege.

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 Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Patricia Hinojosa
Jim Moellinger