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Office of the Attorney General - State of Texas John Cornyn |
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July 16, 2002 Ms. Mia M. Martin
OR2002-3886 Dear Ms. Martin: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 165753. The Richardson Independent School District (the "school district") received a request for "copies of all correspondence, memos, and reports between the school district (staff and board members) and its biracial advisory committee . . . for the 2001-2002 school year . . . ." You indicate that the school district has released some of the requested information. You claim that some requested information held by the school district is not subject to the Public Information Act (the "Act"). You also claim that a portion of the requested information is excepted from disclosure under sections 552.101 and 552.111 of the Government Code. We have considered your arguments and reviewed the submitted information.(1) We begin by addressing your argument that some requested information held by the school district is not subject to the Act. The Act applies only to information that (1) is collected, assembled, or maintained by a governmental body under a law or ordinance or in connection with the transaction of official business, or (2) is collected, assembled, or maintained for a governmental body under a law or ordinance or in connection with the transaction of official business and the governmental body owns the information or has a right of access to the information. Gov't Code § 552.002(a). You contend that some of the requested information consists of meeting minutes and agendas for the Biracial Advisory Committee (the "BRAC"). Although an employee of the school district keeps a file containing the BRAC's meeting minutes and agendas, you contend that the BRAC's meeting minutes and agendas are not subject to the Act because this information is not collected, assembled, or maintained by the school district for the purpose of transacting official school district business. Specifically, you state that the minutes and agendas were created by the BRAC for its own use, and the school district merely warehouses the information for the BRAC. You do not dispute that the meeting minutes and agendas are maintained by a school district employee. Therefore, we must consider whether the school district employee is maintaining the minutes and agendas "in connection with the transaction of [the school district's] official business." See Gov't Code § 552.002(a). The BRAC is a twelve person advisory group created by the United States District Court for the Northern District of Texas in connection with a desegregation lawsuit filed against the school district. According to you, the BRAC advises both the school district's board of trustees (the "board") and the district court on the ways and means of achieving interracial harmony among students, teachers, and patrons, and makes recommendations to the board to assist the board in managing the district. You further state that members of the BRAC serve voluntarily and without pay. According to you, employees of the district perform tasks for the BRAC, including typing and disseminating the BRAC's agendas, disseminating other correspondence to the BRAC, arranging meetings for the BRAC, and maintaining the minutes and agendas of the BRAC's meetings. Because the school district is maintaining the BRAC's meeting minutes and agendas on behalf of the BRAC and the BRAC's sole function is to advise on matters relating to the way in which the school district conducts its business, we find that the school district is maintaining the minutes and agendas in connection with the transaction of the school district's official business. Therefore, the BRAC's minutes and agendas are subject to the Act, and must be released unless they are excepted from disclosure. See Gov't Code §§ 552.002(a), .021, .221, .301, .302; Open Records Decision Nos. 635 (1995) (records relating to governmental body's official business and held by individual member of governmental body are "public information" subject to the Act), 317 (1982) (fact that information originally generated by another entity not relevant to determination of whether it is covered by Public Information Act while possessed by governmental body), 142 (1976) (same). You contend that the submitted information is excepted from disclosure under section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." However, you do not raise any confidentiality provision, nor are we aware of any, that makes the submitted information confidential. Therefore, the submitted information may not be withheld under section 552.101. You also contend that the submitted information is excepted from disclosure under section 552.111 of the Government Code. Section 552.111 provides that "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency is excepted from [required public disclosure]." This exception applies not only to internal memoranda, but also to memoranda prepared by consultants of a governmental body. Open Records Decision Nos. 462 at 14 (1987), 298 at 2 (1981). Section 552.111 encompasses the deliberative process privilege. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000). The deliberative process privilege, as incorporated into the Act by section 552.111, protects from disclosure interagency and intra-agency communications consisting of advice, opinion, or recommendations on policymaking matters of a governmental body. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000); Open Records Decision No. 615 at 5 (1993). 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, the deliberative process privilege does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152 (Tex. App.--Austin 2001, no pet.); ORD 615 at 4-5. The preliminary draft of a policymaking document that has been released or is intended for release in final form is excepted from disclosure in its entirety under section 552.111 because such a draft necessarily represents the advice, recommendations, or opinions of the drafter as to the form and content of the final document. Open Records Decision No. 559 at 2 (1990). You contend that two of the submitted documents consist of drafts relating to the school district's policymaking authority. The first document is a draft of the Discipline Action Plan, which deals with racial concerns related to student discipline. The second document is a draft version of an annual report that is required to be filed with the federal district court in connection with the desegregation lawsuit filed against the school district. You indicate that the school district has already released a final version of the second document to the requestor. We agree that both documents at issue consist of internal drafts of policymaking documents, and therefore, the documents may be withheld under section 552.111. See id. You also argue that the meeting minutes and the agendas of the BRAC are excepted from disclosure under section 552.111 of the Government Code. While we agree that a portion of the submitted meeting minutes contain intra-agency advice, opinion, and recommendations on the school district's policymaking matters, we find that the majority of the meeting minutes as well as the submitted agenda do not consist of advice, opinion, or recommendations. We have marked the portion of the meeting minutes that may be withheld under section 552.111. The remainder of the minutes and the agenda must be released. In summary, the submitted meeting minutes and agenda of the BRAC are subject to the Act. The school district may withhold the portion of the meeting minutes that we have marked under section 552.111 of the Government Code, but must release the remainder of the minutes as well as the submitted agenda. In addition, the school district may withhold the submitted draft documents under section 552.111. 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); Tex. Dep't of Pub. 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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, Nathan E. Bowden
c: Ms. Kristine Hughes
Footnotes 1. You indicate that portions of the submitted information are samples of the requested information. 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). 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 |