Open Records Decision No. 459
February 17, 1987

	Re:  Whether letter requesting a decision under the Open Records Act, article 
6252-17a, V.T.C.S., is subject to required disclosure under the act

Mr. David W. Reagan
Midland City Attorney
P.O. Box 1152
Midland, Texas  79702

Dear Mr. Reagan:

	On October 29, 1986, you asked if the Open Records Act, article 6252-17a, 
V.T.C.S., required the city of Midland to grant a request for information.  Concluding 
that principles discussed in our prior decisions clearly established that the city need not 
do so, we so responded in an informal letter.  You have now advised us that the original 
requestor has asked for a copy of your October 29 letter.  You wish to withhold three 
portions of this letter on the ground that their release would divulge information held in 
our earlier response to be protected from forced disclosure.

	We have never addressed formally the issue of how the act applies to request 
letters from governmental bodies.  Our practice, however, has been to treat such letters as 
being generally available to the public.  See V.T.C.S. art. 6252-17a, §6(15) (information 
is public if it is "currently regarded by agency policy as open to the public").  When, for 
example, a request is assigned a file number to be handled formally, we furnish a copy to 
the Texas Register, and we also send copies to parties who might wish to brief the issues 
raised therein.  We do this both to insure public notice of the request and to give 
interested parties an opportunity to provide input.  Also, this practice implements the 
directive in section 7(b) of the act that on receiving an Open Records Act request, the 
attorney general shall "consistent with standards of due process" render a decision.

	We have made two exceptions to the policy of disclosing request letters.  If a 
request letter actually contains the information which is in dispute, we do not disclose 
that information, for to do so would defeat the purpose of the request.  We also attempt 
to withhold information protected by privacy rights, even where the governmental body 
that submitted the request raised no privacy argument.  See Open Records Decision No. 
344 (1982) (attorney general will invoke section 3(a)(1)).  This office, however, is often 
not in a position to know if particular information raises a privacy issue until the 
information is carefully reviewed.  The best practice, therefore, is for governmental 
bodies to submit information which is the subject of their request or which raises a 
privacy claim in a separate document accompanying their request letter, rather than in the 
letters themselves.

	Governmental bodies are advised, therefore, that we generally regard as a public 
record their letters requesting Open Records Decisions, including any arguments for 
withholding information under the act.  To insure the protection of information which is 
the subject of the request or which raises a privacy issue, governmental bodies should 
submit it in a separate document accompanying their request letters.

	In this instance, the issue is somewhat different.  You ask not about information 
involved in a pending request, but about material the release of which, you argue, would 
disclose information which we have already decided is protected from required 
disclosure.  Whenever we conclude that a governmental body may legally deny a request 
for information, we have necessarily found that the information is within an exception in 
section 3(a) of the act.  To require a governmental body to disclose the contents of its 
request letter, when to do so would reveal information which we have previously held is 
within a section 3(a) exception, would effectively negate our previous conclusion.  We 
therefore conclude that, when we have held information to be within a section 3(a) 
exception, that exception authorizes the governmental body to withhold the portion(s) of 
its request letter that would disclose this information.  A governmental body which 
receives a request for its request letter and wishes to withhold part or all of its contents 
must seek our decision.  As noted above, to alleviate problems of this nature, 
governmental bodies should submit information subject to an open records request 
separately.

	We now turn to the facts of this case.  In our previous response, we stated that 
section 3(a)(3) of the act authorized the city to deny the request which was the subject of 
its October 29 letter to this office.  We have examined the three portions of this letter that 
you have highlighted, and we agree with your contention that their disclosure would 
effectively reveal information held in our previous response to be protected by section 
3(a)(3).  The city may therefore withhold these portions of its October 29 request letter.

Very truly yours,

Jim Mattox
Attorney General of Texas

Jack Hightower
First Assistant Attorney General

Mary Keller
Executive Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Prepared by Jon Bible
Assistant Attorney General