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Office of the Attorney General - State of Texas John Cornyn |
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January 10, 2002 Ms. Janice Mullenix
OR2002-0173 Dear Ms. Mullenix: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 157461. The Texas Department of Transportation (the "department") received two requests for information concerning certain transportation enhancement projects. The first requestor asks which of the Houston area projects for the November allocation of transportation enhancement project funds received "strong/strong/strong" ratings and why did the remainder not receive them. The second requestor seeks "information regarding [the] Bosque County Chisholm Trail grant." As responsive to the first request, you have submitted to this office a list of the Houston District projects that includes among other information three ratings for each proposed project. You have also submitted a collection of Executive Summaries for each proposed Houston District project.(1) You state that these submissions are representative of the documents responsive to the second request.(2) You claim that the requested information is excepted from disclosure under section 552.111 of the Government Code. We have considered the exception you claim and reviewed the submitted information. 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. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 364 (Tex. 2000); Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152 (Tex. App.--Austin 2001, no pet.). 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. ORD 615 at 5-6. Additionally, section 552.111 does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Arlington Indep. Sch. Dist., 37 S.W.3d at 160; ORD 615 at 4-5. You inform us that federal law requires that a percentage of funds apportioned to a state be set aside for certain enhancement activities. To implement this requirement, the department has established a system of selection of projects for receipt of funding under which the department receives nominations of projects from eligible nominating entities and analyzes those projects for eligibility and technical sufficiency. See 43 T.A.C. §§ 11.200- .205. You state that the nominated enhancement projects are analyzed by three groups: the local staff in the relevant department district; the department's Design Division in Austin, and the Transportation Enhancement Project Evaluation Committee ("TEPEC"), which evaluates the potential benefit of each eligible candidate project. Each of these groups makes a recommendation to the Transportation Commission concerning the selection of nominated projects for receipt of funds. You argue that the Transportation Commission should have access to the full and frank recommendations of its local staff, of its Austin staff, and of TEPEC in making these policy judgments. We agree. We find that section 552.111 applies to the ratings of the three groups on the list of projects. We also find that section 552.111 applies to the three ratings as well as the District Comments on the Executive Summaries. The remaining information on these documents does not consist of advice, recommendation, or opinion and must be released to the requestor. In summary, based on section 552.111 of the Government Code, the department may withhold from the requestor the ratings on the list of projects. On the Executive Summaries, the department may likewise withhold the ratings and also withhold the District Comments. The department must release the remaining information. 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 Texas Building and Procurement 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, Kay Hastings
c: Mr. James Gibbons
Mr. C.K. Word, Jr.
Footnotes 1. As the first request is in the form of a question, we note that, while the Public Information Act does not require the department to answer a question, the law does require the department to make a good faith effort to relate the request to information it holds, which we believe the department has done here. 2. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988) (where requested documents are numerous and repetitive, governmental body should submit representative sample; but if each record contains substantially different information, all must be submitted). This open records letter does not reach, and therefore does not authorize the withholding of any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |