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Office of the Attorney General - State of Texas John Cornyn |
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June 29, 2001 Mr. Michael Wied
OR2001-2788 Dear Mr. Wied : You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 148856. The Texas Water Development Board (the "board") received a request for all correspondence regarding the Allens Creek Reservoir Project. You claim that the requested information is excepted from disclosure under sections 552.103, 552.106, 552.107, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. You contend that Document Nos. 1 - 59, 62, 66 - 105, 108 -110, and 163 - 181, are excepted from disclosure under section 552.107(1) of the Government Code. Section 552.107(1) of the Government Code excepts information "that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct[.]" While section 552.107(1) appears to apply to information within rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, this office has determined that section 552.107 cannot be applied as broadly as written to information in the possession of an attorney for a governmental body. Open Records Decision No. 574 (1990). Section 552.107(1) was found to protect only the attorney's communication of legal advice or opinion to the client and communications from a client to an attorney where those communications are made in confidence and in furtherance of the attorney rendering professional legal service to the governmental body. Id. at 5. Moreover, section 552.107(1) does not except purely factual information from disclosure. Id. We determine the applicability of section 552.107(1) on a case-by-case basis. We agree that some of the information in Document Nos. 1 - 59, 62, 66 - 105, 108 -110, and 162 - 181, which we have marked, reflects either client confidences or an attorney's legal advice or opinions that the board may withhold under section 552.107. You also contend that the information in Document Nos. 60 - 61, and 129 - 161, is excepted from disclosure under sections 552.107(1) and/or 552.106 of the Government Code. We have marked the information in Document Nos. 60 - 61, and 129 - 161 that reflect either client confidences or an attorney's legal advice or opinions and may therefore be withheld under section 552.107. With regard to your argument under section 552.106 with respect to the remaining information in Document Nos. 60 - 61, and 129 - 161, we note that section 552.106 of the Government Code excepts from disclosure "[a] draft or working paper involved in the preparation of proposed legislation" and "[a]n internal bill analysis or working paper prepared by the governor's office for the purpose of evaluating proposed legislation." Section 552.106 ordinarily applies only to persons with a responsibility to prepare information and proposals for a legislative body. Open Records Decision No. 460 (1987). The purpose of section 552.106 is to encourage frank discussion on policy matters between the subordinates or advisors of a legislative body and the members of the legislative body, and therefore, it does not except from disclosure purely factual information. Id. at 2. However, a comparison or analysis of factual information prepared to support proposed legislation is within the ambit of section 552.106. Id. This office has also concluded that the drafts of municipal ordinances and resolutions which reflect policy judgments, recommendations, and proposals are excepted by section 552.106. Open Records Decision No. 248 (1980). You inform us that most of the information you seek to withhold under section 552.106 "consist[s] of communications relating to Senate Bill 1593 and House Bills 3594 and 3793, each of which, at the time of communication, constituted proposed legislation pending before the Texas legislature." You further inform us that Document No. 161 "relates to proposed legislation during the 1997 legislative session." Based on your representations and our review of the submitted documents, we conclude that a portion of the information in the submitted documents is excepted under section 552.106. We have marked the information in Document Nos. 60 - 61, and 129 - 161 that the board may withhold under section 552.106. You assert that Document Nos. 63 and 65 are excepted under sections 552.103 and/or 552.107 of the Government Code. We have marked the information in Document Nos. 63 and 65 that reflect either client confidences or an attorney's legal advice or opinions and may therefore be withheld under section 552.107. We will address your argument under section 552.103 below. Next, you contend that the information in Set B is excepted from disclosure under section 552.103 of the Government Code. As noted above, you also contend that portions of Document Nos. 63 and 65 are excepted under section 552.103. Initially, we note that some of the documents in Set B fall within the scope of section 552.022 of the Government Code. Section 552.022 provides in relevant part that the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] Gov't Code § 552.022(a)(3) (emphasis added). These section 552.022 documents, which we have marked, must be released to the requestor, unless they are "expressly confidential under other law." Section 552.103 is a discretionary exception to disclosure that protects the interests of the governmental body and may be waived; as such, this exception is not "other law" that makes information expressly confidential for purposes of section 552.022. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475, 476 (Tex. App.--Dallas 1999, no pet.) (stating that governmental body may waive section 552.103); Open Records Decision No. 542 at 4 (1990) (stating that statutory predecessor to section 552.103 does not implicate third-party interests and may be waived by governmental body). Thus, information that falls within the scope of section 552.022 may not be withheld from the requestor under section 552.103. We have marked the documents that the board must release under section 552.022. We next consider whether the board may withhold the remaining documents in Set B and the information it has marked in Document Nos. 63 and 65 under section 552.103. Section 552.103 of the Government Code provides as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. Gov't Code § 552.103(a), (c). Section 552.103 was intended to prevent the use of the Public Information Act as a method of avoiding the rules of discovery in litigation. Attorney General Opinion JM-048 at 4 (1989). The litigation exception enables a governmental body to protect its position in litigation by requiring information related to the litigation to be obtained through discovery. Open Records Decision No. 551 at 3 (1990). To show that the litigation exception is applicable, the board must demonstrate that (1) litigation was pending or reasonably anticipated at the time of the request and (2) the information at issue is related to that litigation. See Gov't Code § 552.103(a), (c); see also University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). Contested cases conducted under the Administrative Procedure Act, chapter 2001 of the Government Code, are considered litigation under section 552.103. Open Records Decision No. 588 at 7 (1991). You state that "the Board, the Brazos River Authority, and the City of Houston are joint applicants for a water rights permit relating to the Allens Creek Reservoir Project." You further state that "[a] request for a contested case hearing was filed on October 6, 2000, with the Texas Natural Resource Conservation Commission in Travis County, Texas, by Dow Chemical Company." We note that contested case hearings before the Texas Natural Resource Conservation Commission are generally conducted by the State Office of Administrative Hearings in accordance with the Administrative Procedure Act. See Gov't Code § 2003.047. In this instance, we conclude that you have made the requisite showing that most of the information in Set B relates to litigation that was pending on the day that the request was received and may therefore be withheld from disclosure under section 552.103(a). Certain information in Set B, however, does not appear on its face to relate to the pending litigation. Further, you have failed to indicate how such information relates to the pending litigation. Therefore, we have marked the information in Set B that may not be withheld under section 552.103, and for which you have claimed no other exception. Such information must be released to the requestor. We have marked the information in Document Nos. 63 and 65 that may be withheld under section 552.103. Generally, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to all opposing parties in the pending litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). You assert other exceptions with respect to only one of the documents in Set B that we have found not to be excepted under section 552.103. You assert that this document is excepted under section 552.107(1) of the Government Code. We find that this document contains neither client confidences nor an attorney's legal advice or opinions. Thus, this document may not be withheld under section 552.107(1). You further assert that this document constitutes attorney work product that is excepted from disclosure under section 552.111 of the Government Code. A governmental body may withhold attorney work product from disclosure under section 552.111 if it demonstrates that the material was (1) created for trial or in anticipation of civil litigation, and (2) consists of or tends to reveal an attorney's mental processes, conclusions, and legal theories. Open Records Decision No. 647 (1996). The first prong of the work product test, which requires a governmental body to show that the documents at issue were created in anticipation of litigation, has two parts. A governmental body must demonstrate that (1) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue, and (2) the party resisting discovery or release believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. Open Records Decision No. 647 at 4 (1996) (citing National Tank v. Brotherton, 851 S.W.2d 193, 200 (Tex. 1993)). The second requirement that must be met is that the work product "consists of or tends to reveal the thought processes of an attorney in the civil litigation process." Open Records Decision No. 647 at 4 (1996). Although the attorney work product privilege protects information that reveals the mental processes, conclusions, and legal theories of the attorney, it generally does not extend to facts obtained by the attorney. See id. (citing Owens-Corning Fiberglass v. Caldwell, 818 S.W.2d 749, 750 n.2 (Tex. 1991); see also Leede Oil & Gas, Inc. v. McCorkle, 789 S.W.2d 686 (Tex. App.-Houston [1st Dist.] 1990, no writ)(the attorney work product privilege does not protect memoranda prepared by an attorney that contain only a "neutral recital" of facts). We find that the document at issue here does not contain mental processes, conclusions, or legal theories. Therefore, this document is not protected by section 552.111 and the work product privilege. As this document is not excepted under section 552.103, 552.107, or 552.111, it must be released. We have marked this document accordingly. Finally, you contend that the information in Document Nos. 107, and 112 - 128 is excepted under section 552.111 of the Government Code. Section 552.111 excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. An agency's policymaking functions do not encompass internal administrative or personnel matters; disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. Open Records Decision No. 615 at 5-6 (1993). Additionally, section 552.111 does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Id. at 4-5. Yet, where a document is a genuine preliminary draft that has been released or is intended for release in final form, factual information in that draft which also appears in a released or releasable final version is excepted from disclosure by section 552.111. Open Records Decision No. 559 (1990). However, severable factual information appearing in the draft but not in the final version is not excepted by section 552.111. Id. We have marked the information in Document Nos. 107, and 112 - 128 that the board may withhold under section 552.111. To summarize, we conclude that: (1) the board may withhold the information we have marked in Document Nos. 1 - 59, 60 - 61, 63, 65, 66 - 105, 108 - 110, 129 - 161, and 162 - 181 under section 552.107(1); (2) the board may withhold the information we have marked in Document Nos. 60 - 61, and 129 - 161 under section 552.106; (3) the board must release the documents we have marked in Set B under section 552.022; (4) with the exception of the information we have marked to be released and any information that has been seen by all parties to the pending litigation, the board may withhold the information in Set B under section 552.103; (5) the board may withhold the information we have marked in Document Nos. 63 and 65 under section 552.103; and (6) the board may withhold the information we have marked in Document Nos. 107, and 112 - 128 under section 552.111. The remaining unmarked information in Document Nos. 1 - 181 must be released to the requestor. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Karen A. Eckerle
c: Mr. Lucius Lomax
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |