Open Records Decision No. 335
December 21, 1982

	Re:  “Cash finding” survey prepared for city of Denton by outside accountant

Mr. Chris Hartung
City Manager
City of Denton
Municipal Building
Denton, Texas  76201

Dear Mr. Hartung:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether the draft of a report by a private company is public information.  
The draft is a “cash finding” survey, performed by the company under contract with the 
city, to determine how the city could increase interest earnings through improved cash 
management techniques.  You state that since the draft is not a final report, it is not 
subject to disclosure.  You also claim that the report is excepted by sections 3(a)(1) and 
3(a)(11).

	The fact that the report is not final does not except it from disclosure.  In Open 
Records Decision No. 321 (1982), we stated:

[T]he threshhold question . . . is whether material or data which is 
requested from a governmental body constitutes 'information 
collected, assembled, or maintained by [the governmental body] 
pursuant to law or ordinance or in connection with the transaction of 
official business.'  If it does, the next question is whether it fits 
within any of the exceptions enumerated in section 3(a) of the act; if 
it does not come within an exception, it must be released.  The fact 
that information has not yet been put into 'final' form is, in other 
words, not dispositive of whether it must be made available to the 
public.

Therefore, since the report is definitely “information collected, assembled or maintained 
. . .  in connection with the transaction of official business,” we must determine whether 
the report fits into the exceptions of sections 3(a)(1) or (11).

	Section 3(a)(11) allows exceptions for:

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 applies when information is prepared by outside consultants, as well as when 
an agency employee or another agency prepares the information.  Open Records Decision 
Nos. 293 and 273 (1981); 192 (1978).  However, the section has been construed to 
except only those portions of a document which “consist of advice and 
recommendations.”  Open Records Decision Nos. 273 (1981) and 239 (1980).  The 
exception is designed to protect advice and opinion on policy matters and to encourage 
open discussion concerning administrative action.  Austin v. City of San Antonio, 630 
S.W.2d 391 (Tex. Civ. App. - San Antonio 1982, writ ref'd n.r.e.).  Attorney General 
Opinion H-436 (1974).  See Open Records Decision Nos. 293 and 273 (1981); 239 
(1980); 222 (1979); 174 (1977); 128 (1976); and 86 (1975).

	The “cash finding” report describes current practices of the city, gives an opinion 
as to its effectiveness, and offers advice and recommendations for improvement.  The 
factual information is subject to disclosure; however, advice, opinions, and 
recommendations may be withheld.  We have marked the portions which may be 
withheld.

	You also claim an exception under section 3(a)(1), which excepts:

information deemed confidential by law, either Constitutional, 
statutory, or by judicial decision.

	You have not cited any statute, any section of the constitution, or any judicial 
decision which would make the factual information in the report confidential as a matter 
of law.  We have examined the material and did not find any records which could be 
excepted by section 3(a)(1).

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 Patricia Hinojosa
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

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