Open Records Decision No. 460
February 18, 1987

	Re:  Whether the city manager must release a proposed budget under the Open 
Records Act before the date the budget is presented to the city council

Mr. Anthony C. McGettrick
Laredo City Attorney
1105 Lincoln
Laredo, Texas  78040

Dear Mr. McGettrick:

	The city of Laredo received a request under the Texas Open Records Act, article 
6252-17a, V.T.C.S., for a copy of the city manager's proposed budget for the sewer fund.  
You indicate that the city charter directs the city manager to present written budget 
proposals to the city council.  The council discusses the budget during at least one public 
hearing prior to its adoption.  The city manager releases copies of the budget to the 
public when he presents the budget to the council for public discussion.  You ask whether 
the city manager must release either the partially completed or finalized proposed budget 
before the date the budget is presented to the city council.

	Under the Open Records Act, all information collected, assembled, or maintained 
by governmental bodies covered by the act is open unless the information falls within 
one of the act's specific exceptions to disclosure.  You contend that sections 3(a)(6) and 
3(a)(11) of article 6252-17a except the proposed budget from public disclosure.

	Section 3(a)(6) excepts from disclosure "drafts and working papers involved in 
the preparation of proposed legislation."  This office has decided only a handful of cases 
under section 3(a)(6).  See Open Records Decision Nos. 429 (1985); 367 (1983); 344 
(1982); 248 (1980); 197 (1978); 140 (1976).  Section 3(a)(6) ordinarily applies only to 
persons with a responsibility to prepare information and proposals for a legislative body.  
Open Records Decision No. 429.  You indicate that the city charter directs the city 
manager to prepare budget proposals for the city council.  Because of this directive and 
because the city council is a legislative body, section 3(a)(6) applies to this situation.  
The applicability of section 3(a)(6) to this specific budget proposal, however, depends 
upon the nature of the proposal.

	In Open Records Decision No. 248, this office held that section 3(a)(6) protects 
drafts of a municipal ordinance or resolution which reflect policy judgments, 
recommendations, and proposals.  The purpose for the exception is to encourage frank 
discussion on policy matters between the subordinates or advisors of a legislative body 
and the legislative body.  Accordingly, section 3(a)(6) does not except purely factual 
information.  Open Records Decision Nos. 344, 140.  For example, in Open Records 
Decision No. 344, this office required the State Property Tax Board to release factual 
findings of the value of taxable property.  On the other hand, a comparison or analysis of 
facts prepared to support proposed legislation is within the ambit of section 3(a)(6).  See 
Open Records Decision No. 140.

	Applying these principles to the case at hand requires the conclusion that section 
3(a)(6) protects a proposed budget.  This situation is not like that presented in Open 
Records Decision No. 344.  In that decision, the property value findings of the State 
Property Tax Board were determined to be factual in nature.  Further, the decision is 
distinguishable on the basis that the board's findings were not submitted to the various 
school districts as "proposed legislation"; the board's findings were of an independent 
adjudicative nature.  Consequently, the property value findings failed to fit the classic 
example of proposed legislation that section 3(a)(6) was intended to protect.  See 
generally Open Records Decision No. 429.  In contrast, the city manager's proposed 
budget for a city project such as a Sewer Fund constitutes "proposed legislation" which, 
by its very nature, comprises recommendation rather than fact.  If, however, the proposal 
incidentally contains purely factual matters which can be severed and disclosed without 
revealing the recommendations of the city manager, these factual matters must be 
disclosed.  For example, if the proposed budget contains expenditures for the previous 
year, the city cannot refuse to disclose the expenditures simply because they are included 
in the proposed budget.

	It has been suggested that subsections (1) and (5) of section 6 of the Open 
Records Act require the disclosure of the budget proposal as soon as the manager 
completes it.  These subsections require the disclosure of certain reports "upon 
completion":

	Sec. 6.	Without limiting the meaning of other sections of this 
Act, the following categories of information are specifically made 
public information:

	(1)	reports, audits, evaluations, and investigations made of, for, 
or by governmental bodies upon completion;

	. . . .

	(5)	all working papers, research material, and information used 
to make estimates of the need for, or expenditure of, public funds or 
taxes by any governmental body, upon completion of such 
estimates. . . .  (Emphasis added).

V.T.C.S. art. 6252-17a, §6.

	It is now well-established that section 6 does not limit the meaning of other 
sections of the Open Records Act.  See Houston Chronicle Publishing Co. v. City of 
Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. 
per curiam, 536 S.W.2d 559 (Tex. 1976); Open Records Decision Nos. 407 (1984); 344, 
321 (1982); 140 (1976).  This means that information may not be withheld solely 
because it is in incomplete form.  The applicable test for required disclosure under the 
Open Records Act is two-fold:  (1) whether the information constitutes information 
collected, assembled, or maintained by governmental bodies within the scope of section 
3(a); and, if so, (2) whether the information falls within one of the 18 specific exceptions 
to disclosure listed in section 3(a).  Section 6 does not negate the specific exceptions to 
disclosure.  As indicated, a proposed budget submitted by the city manager to the city 
council falls within section 3(a)(6).  Further, although the budget may be "completed" 
with regard to the city manager's role, it remains merely a draft of legislation until the 
city council adopts it.

	You also suggest that section 3(a)(11) protects the proposed budget from 
disclosure.  Section 3(a)(11) protects

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.

Like section 3(a)(6), section 3(a)(11) protects advice, opinion and recommendation on 
policy matters in order to encourage frank discussion in connection with a governmental 
entity's decision-making process.  See Austin v. City of San Antonio, 630 S.W.2d 391, 
394 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.).  In Open Records Decision No. 
429, this office examined decisions interpreting section 3(a)(11) in determining the scope 
of section 3(a)(6).  Although the provisions protect the same type of information, section 
3(a)(6) is narrower in that it applies specifically to the legislative process.  See Open 
Records Decision No. 429.  In light of our response regarding section 3(a)(6), it is 
unnecessary to address your claim that section 3(a)(11) protects the proposed budget.

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 Jennifer Riggs
Assistant Attorney General