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Office of the Attorney General - State of Texas John Cornyn |
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October 10, 2001 Mr. Sal Levatino
OR2001-4584 Dear Mr. Levatino: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 152432. On June 14, 2001, the Denton County Fresh Water Supply Districts (the "districts") received a request for information pertaining to certain Fresh Water Supply Districts in Denton, Kaufman, and Parker Counties. You inform us that you represent the law firm of Leonard Hurt Frost Lilly & Levin (the "Leonard firm"), which acts as custodian of records for the districts. You state that the districts had made certain records, which the districts had identified as responsive to the request for information, available for review by the requestor. You further inform us that after the requestor had viewed the records made available to him and requested copies, the Leonard firm apparently identified some sixteen pages of documents that you contend were released to the requestor by mistake.(1) You now claim that the requested information is not public information subject to the Act, or, alternatively, that the requested information is excepted from disclosure under sections 552.101, 552.107, 552.110, and 552.111 of the Government Code. We have also received comments from the law firm representing the requestor and from Castle Hills Development Corporation, a third party whose interests may be affected by public disclosure of a portion of the information at issue. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Act in certain circumstances). You requested a decision from this office on July 23, 2001, but did not submit any of the information at issue, nor a copy of the original request for information as required by section 552.301. This office, pursuant to section 552.303, requested additional information which we determined was required in order for this office to render a decision in this matter. In response, you provided only a portion of the information requested. Section 552.303 provides in pertinent part:
You did not provide the requested information pertaining to the "consulting agreements" to this office. Because you did not submit the information at issue, we are unable to address your arguments that it does not meet the definition of public information subject to the Act or is excepted from disclosure. Section 552.303(e) provides that the information is presumed to be subject to required public disclosure absent a compelling reason to withhold it. Because you have not submitted the information you have described as "consulting agreements," we have no basis for determining whether a compelling reason exists for withholding it. Thus, we have no choice but to order the information you have described as "consulting agreements" released pursuant to section 552.303. If you believe the information is confidential and may not lawfully be released, you must challenge the ruling in court as outlined below. We caution that the distribution of confidential information constitutes a criminal offense. See Gov't Code § 552.352. In response to the section 552.303 letter, you provided this office with a copy of the "paralegal memo." You assert that this information is not public information and, therefore, is not subject to the Act. We first address this threshhold issue. Section 552.002 of the Government Code defines public information as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it. We note that information held by a law firm as the agent of a governmental body is within the constructive possession of the governmental body, and therefore subject to the Act. Open Records Decision No. 462 (1987). Although you acknowledge that the information at issue was contained in the districts' client file, you assert that the memo was not prepared for the districts. You further state that the district has no right of access to the memo, but provide no explanation nor authority for this conclusory assertion. This office has previously held that a client generally has a right of access to papers and other documents held in its attorney's file. Open Records Decision No. 499 (1988). However, based upon our review of the information at issue, we find that the information consists of internal notes which have been generated primarily for the attorney's purposes in working on the client's problem. Thus, we conclude that the memo is not public information, and therefore is not subject to release pursuant to the Act. See Gov't Code §552.002(a). Therefore, you may withhold the submitted memo from public disclosure. In summary, the information you have described as "consulting agreements" must be released pursuant to section 552.303. The "paralegal memo" is not public information, and is not subject to release under the Act. 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 Dept. 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, Cindy Nettles
c: Mr. Brooks Egerton
Mr. Gary R. Rice
Mr. Chris R. Bright
Footnotes 1. Although this office has held that a governmental body that voluntarily furnishes information to a newspaper may not later claim that that information may be withheld from others, it has never held that information which is not voluntarily released by a governmental body, but which nevertheless finds its way into the hands of a member of the general public, is henceforth automatically available to everyone. Open Records Decision Nos. 387 (1983), 376 (1983), 162 (1977). In our opinion, the Public Information Act does not preclude a governmental body from invoking one or more of the act's exceptions to protect from further public disclosure information which has been released on a limited basis through no official action, and against the wishes and policy of, the governmental body. See Open Records Decision No. 387 (1983). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |