August 27, 2001

Ms. Anne M. Constantine
Legal Counsel
Dallas/Fort Worth International Airport
P.O. Drawer 619428
DFW Airport, Texas 75261-9428

OR2001-3774

Dear Ms. Constantine:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 151201.

The Dallas/Fort Worth International Airport Board (the "board") received a request for copies of various items of information. You state that you are in the process of releasing most of the requested records. However, you claim that the submitted information is excepted from disclosure pursuant to sections 552.107 and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.

We note at the outset that you did not submit any responsive information pertaining to the names of the investigators that the board used to investigate the accident and the names of the board members that reviewed the accident, the findings of the investigation, and any complaints or concerns regarding the accident. To the extent that you maintain such information, you must provide that information to the requestor at this time. See Gov't Code §§ 552.006, .301, .302; see also Open Records Decision No. 664 (2000) (noting that if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible under circumstances).

Next, we note that section 552.022 of the Government Code makes certain information public. See Gov't Code § 552.022(a). One category of public information under section 552.022 is "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by [s]ection 552.108[.]" Gov't Code § 552.022(a)(1). Another category is information that is also contained in a public court record. Gov't Code § 552.022(a)(17). The submitted information contains one document, which we have marked, that is encompassed by section 552.022(a)(1) of the Government Code. Therefore, unless this document is expressly confidential under other law or is excepted from disclosure pursuant to section 552.108 of the Government Code, it must be released to the requestor. Likewise, the submitted information also contains another document that is a public court record that must be released to the requestor, unless it is expressly confidential under other law. You claim that these documents are excepted from disclosure pursuant to section 552.107 of the Government Code. However, our office has previously concluded that section 552.107 is a discretionary exception and, thus, is not other law that expressly makes information confidential.⁽¹⁾ See Open Records Decision No. 630 at 4 (1994) (governmental body may waive section 552.107(1)). Therefore, you may not withhold this information pursuant to section 552.107 of the Government Code.

However, the attorney-client privilege is also found in Rule 503 of the Texas Rules of Evidence. Although this office does not generally address the applicability of discovery and evidentiary rules to submitted information, the Texas Supreme Court recently held that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." In re City of Georgetown, No. 00-0453, 2001 WL 123933, at *8 (Tex. Feb. 15, 2001). Thus, we will address whether Rule 503 of the Texas Rules of Evidence excepts these two documents from disclosure. Rule 503 provides in pertinent part:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer;

(B) between the lawyer and the lawyer's representative;

(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;

(D) between representatives of the client or between the client and a representative of the client; or

(E) among lawyers and their representatives representing the same client.

Tex. R. Evid. 503(b)(1). A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. See Tex. R. Evid. 503(a)(5).

Accordingly, in order to withhold attorney-client privileged information from disclosure under Rule 503, a governmental body must 1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; 2) identify the parties involved in the communication; and 3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the document containing privileged information is confidential under Rule 503, provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in Rule 503(d). See Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ); see also Tex. R. Evid. 511 (waiver of privilege by voluntary disclosure). Based on your representations and our review of the two marked documents, we conclude that one of them constitutes confidential communications between the board as client and the board's lawyer and, thus, is excepted from disclosure pursuant to Rule 503 of the Texas Rules of Evidence. Accordingly, you may withhold from disclosure the document that we have marked pursuant to Rule 503. However, you must release the marked public court record pursuant to section 552.022(a)(17) of the Government Code.

You claim that the remaining submitted information which is responsive to item number 17 of the request is excepted from disclosure pursuant to section 552.107 of the Government Code. Section 552.107 of the Government Code excepts information encompassed by the attorney-client privilege from disclosure. In Open Records Decision No. 574 (1990), this office concluded that section 552.107 excepts from disclosure only "privileged information," that is, information that reflects either confidential communications from the client to the attorney or the attorney's legal advice or opinions; it does not apply to all client information held by a governmental body's attorney. See Open Records Decision No. 574 at 5 (1990). Purely factual communications from attorney to client or between attorneys representing the client are not protected. See id. at 3. In addition, factual recountings of events or the documentation of calls made, meetings attended, and memos sent are not protected. See id. at 5. After careful review of the remaining submitted information which you claim is excepted from disclosure under section 552.107, we agree that most of it constitutes either a client confidence or an attorney's legal advice or opinion. Therefore, we conclude that you may withhold from disclosure the information that we have marked pursuant to section 552.107 of the Government Code.

You claim that the submitted information that is responsive to item number 13 of the request for information is excepted from disclosure pursuant to 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. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 364 (Tex. 2000); see also Arlington Indep. Sch. Dist. v. Texas Attorney Gen., No. 03-00-00219-CV, 2001 WL 23169, at * 5 (Tex. App.-Jan. 11, 2001, no pet. h.). The purpose of section 552.111 is "to protect from public disclosure advice and opinions on policy matters and to encourage frank and open discussion within the agency in connection with its decision-making processes." Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.) (emphasis added). 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. See 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. See Arlington Indep. Sch. Dist. at * 6-7; ORD 615 at 4-5. You state that the documents that you claim are excepted from disclosure under section 552.111 of the Government Code contain advice or opinion in connection with decision-making processes pertaining to policy matters. Based on our review of this information, we agree that some of it concerns the decision-making processes of the board related to policy matters. Therefore, we conclude that you may withhold from disclosure the information that we have marked pursuant to section 552.111 of the Government Code.

In summary, you must release information that is responsive to the portion of the request pertaining to the names of the investigators that the board used to investigate the accident and the names of the board members that reviewed the accident, the findings of the investigation, and any complaints or concerns regarding the accident. You must withhold from disclosure the information which we have marked pursuant to Rule 503 of the Texas Rules of Evidence. You may withhold from disclosure the information that we have marked pursuant to section 552.107 of the Government Code. You may withhold from disclosure the information that we have marked pursuant to section 552.111 of the Government Code. You must release the rest of the submitted information 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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division

RJB/seg

Ref: ID# 151201

Enc. Marked documents

cc: Mr. Bill LaFond
LaFond Investigations, Inc.
2634 South Carrier Parkway, Suite 103
Grand Prairie, Texas 75052
(w/o enclosures)

Footnotes

1. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 551 (1990) (statutory predecessor to section 552.103 serves only to protect governmental body's position in litigation and does not itself make information confidential), 473 (1987) (governmental body may waive section 552.111), 522 at 4 (1989) (discretionary exceptions in general). Discretionary exceptions, therefore, do not constitute "other law" that makes information confidential.
 

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