Open Records Decision No. 412
May 2, 1984

	Re:  Whether a letter from an assistant attorney general to a client agency is 
excepted from disclosure under the Open Records Act

Mr. Richard D. Latham
Securities Commissioner
State Securities Board
1800 San Jacinto
Austin, Texas  78711

Dear Mr. Latham:

	On January 30, 1984, an assistant attorney general responded to your request for 
advice concerning the requirements for rulemaking hearings under section 5(c) of article 
6252-13a, V.T.C.S.  The response consisted of a letter and supplemental memoranda.  In 
a letter dated February 8, a requestor asked you for a copy of "the Attorney General's 
opinion, to which you made reference to [sic] at the 2/3/84 Board Meeting, which 
opinion equated public hearings with rulemaking proceedings."  You contend that 
sections 3(a)(1) and 3(a)(7) of article 6252-17a, V.T.C.S., the Open Records Act, 
authorize you to withhold the requested letter and memoranda, on the ground that they 
are within the attorney-client privilege.  You also rely upon section 3(a)(11).

	At the outset, we must clarify what is at issue in this instance.  We understand 
that the letter which precipitated the assistant attorney general's response did not request 
a formal opinion pursuant to article 4399, V.T.C.S.  As a matter of practice, requests for 
opinions made under that article are routinely noticed in the Texas Register and answered 
in formal, published Attorney General Opinions.  A person who requests and obtains a 
formal opinion under article 4399 may not invoke the attorney-client privilege to protect 
its contents, since he must be presumed to be aware that his request will be noticed in the 
Texas Register and that the answer will be published.  With this knowledge he must be 
presumed to have voluntarily waived any right to attempt to assert the privilege.

	Your request stands on a different footing.  Rather than a request for a formal 
Attorney General Opinion under article 4399, the request sought informal legal advice 
from the assistant attorney general who represents your agency.  See V.T.C.S. art. 581-3 
(attorney general to represent Securities Board in certain matters).  We believe that a 
state agency, as a client of the attorney general, article IV, section 22 of the Texas 
Constitution, has the right to invoke the attorney-client privilege to protect the contents 
of legal correspondence that it receives from the assistant attorney general who represents 
it.  Since such correspondence is not sought under article 4399, the requestor cannot be 
said to have waived its right to attempt to assert the attorney-client privilege to protect it.

	We therefore conclude that the attorney-client privilege may be invoked in this 
instance.  In light of this conclusion, we need not address your claim under section 
3(a)(11).

	Having concluded that the attorney-client privilege may be invoked in this 
instance, we now consider the extent to which it applies.  Both your letter and the letter 
sent to you by the person seeking this information indicate that at least some of the 
information contained in the assistant attorney general's response was made public in 
board meetings.  We do not believe the attorney-client privilege may be invoked to 
protect from disclosure information which has already been voluntarily disclosed at a 
public meeting.  Since we do not have all relevant details before us, we cannot determine 
the extent to which you have waived your right to assert the privilege in this instance.  
We therefore simply advise generally that any information contained in the requested 
letter and supplementary memoranda which has already been disclosed to the public, 
either in public board meetings or in some other manner, may not be withheld under the 
attorney-client privilege.  Similarly, this information may not be withheld under section 
3(a)(11), since voluntary disclosure of information removes that information from the 
ambit of this section as well.

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton