Open Records Decision No. 359
March 9, 1983

	Re:  Whether report to commissioner of Mental Health and Mental Retardation on 
problems at El Paso State Center for Human Development is excepted from disclosure 
under the Open Records Act

Mr. W. Kent Johnson
Director
Legal Services
Texas Department of Mental Health and Mental Retardation
P. O. Box 12668
Austin, Texas  78711

Dear Mr. Johnson:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether a report regarding a mental health facility is available to the 
public.

	On November 17, 1982, a special review team appointed by the commissioner of 
the Department of Mental Health and Mental Retardation submitted to him a report 
relating to the El Paso State Center for Human Development, a facility of the department.  
You suggest that parts of the report, which you have marked, are excepted from 
disclosure under section 3(a)(11), and that two other brief paragraphs are excepted by 
section 3(a)(2) and 3(a)(3).

	As has been frequently noted, section 3(a)(11) excepts advice, opinion, and 
recommendations contained in inter-agency and intra-agency memoranda from public 
disclosure.  Open Record Decision Nos. 349, 335, 331, 328, 323, 315, 313 (1982).  The 
exception is designed to protect advice and opinion on policy matters, and to encourage 
open and frank discussion regarding administrative action.  Open Record Decision Nos. 
344, 308 (1982); 298, 293, 273 (1981); 239 (1980); 225, 222 (1979).  We agree that the 
portions of the report you have marked as “opinion” and “recommendations” are 
excepted by 3(a)(11).

	You contend that one paragraph is excepted by section 3(a)(2), as “information in 
personnel files.”  The information at issue is a reference to the resignation of a particular 
individual.  This office has often stated that section 3(a)(2) may be invoked only when 
information reveals “intimate details of a highly personal nature.”  Open Records 
Decision Nos. 315 (1982); 298 (1981); 224 (1979).  The information you have marked is 
not excepted from disclosure by section 3(a)(2).

	You suggest that another paragraph is excepted from disclosure only by section 
3(a)(3), the litigation exception.  You do not indicate that any litigation is pending in 
regard to this information, and apparently are suggesting merely that its release may 
encourage litigation.  Section 3(a)(3) is applicable only where litigation is pending or 
reasonably anticipated in regard to a specific matter.  Open Records Decision Nos. 351, 
331, 326, 323, 311 (1982); 288 (1981); 219 (1978).  It is clearly inapplicable to the 
paragraph you have marked.

	We conclude that you may withhold those portions of the report you have marked 
as “opinion” and “recommendations.”  The remainder should be disclosed.

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

Approved:
Opinion Committee

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