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Office of the Attorney General - State of Texas John Cornyn |
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July 18, 2002 Mr. Patrick W. Lindner
OR2002-3949 Dear Mr. Lindner: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 165857. The Brownsville Public Utilities Board ("BPUB"), which you represent, received a request for all documents generated since January 1, 1997, pertaining to relations between BPUB and a named individual, the law firm of Baker Botts or any of their agents, and "[a]ny other individual or entity that BPUB or its agents considered contracting for lobby-related services." You claim that the requested information is excepted from disclosure under sections 552.101, 552.103, and 552.107 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information.(2) We begin by addressing your contention that submitted fee bills from Baker Botts are not responsive to the request because the bills relate to legal services, not lobbying services. This office has found that upon receipt of a request for information, a governmental body must make a good faith effort to relate the request to information which it holds. Open Records Decision No. 561 (1990). Here, the request encompasses all documents relating to the relationship between BPUB and Baker Botts and is not limited to information regarding lobbying services. Therefore, we find that the submitted fee bills are responsive to the instant request. Next, we note that the fee bills and another responsive document are subject to section 552.022 of the Government Code. Section 552.022 provides in relevant part: (a) Without limiting the amount or kind of information that is public information under this chapter, 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: . . . (5) all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate; . . . (16) information that is in a bill for attorney's fees and is not privileged under the attorney-client privilege. Gov't Code § 552.022(a)(5), (16). Therefore, the fee bills and the document relating to the expenditure of public funds, which we have marked, must be released unless they are confidential under other law. Sections 552.103 and 552.107 of the Government Code are discretionary exceptions and are not "other law" for the purpose of section 552.022. Open Records Decision Nos. 663 (1999) (governmental body may waive section 552.103), 630 at 4 (1994) (governmental body may waive section 552.107(1)). However, you also contend that the submitted information is excepted from disclosure under Texas Rule of Evidence 503 and Texas Rules of Civil Procedure 192.3 and 192.5. Recently, the Texas Supreme Court 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, 53 S.W.3d 328 (Tex. 2001). Thus, we will determine whether the information subject to section 552.022 is protected from disclosure under Texas Rule of Evidence 503 and Texas Rules of Civil Procedure 192.3 and 192.5. Rule 503(b)(1) provides: 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. 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. 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). Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ). We agree that the document that is subject to section 552.022(a)(5) consists of a confidential communication between attorney and client made for the purpose of rendering legal services. Therefore, BPUB may withhold this document under Texas Rule of Evidence 503. On the other hand, we find that you have not adequately demonstrated that any of the submitted fee bills contain confidential communications made for the purpose of rendering legal services. Therefore BPUB may not withhold the submitted fee bills under Rule 503. We next address your contention that the fee bills are protected under Texas Rule of Civil Procedure 192.3(e). Rule 192.3(e) provides, "The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable." The fee bills at issue contain communications from Baker Botts to BPUB. You do not indicate, nor does it appear, that the fee bills contain the identity, mental impressions, or opinions of a consulting expert. Therefore, BPUB may not withhold the fee bills under Rule 192.3. Finally, we address your contention that the submitted fee bills are protected from disclosure under Texas Rule of Civil Procedure 192.5. An attorney's work product is confidential under Rule 192.5. Work product is defined as (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or (2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents. Tex. R. Civ. P. 192.5(a). Accordingly, in order to withhold attorney work product from disclosure under Rule 192.5, a governmental body must demonstrate that the material, communication, or mental impression was created for trial or in anticipation of litigation. Id. To show that the information at issue was created in anticipation of litigation, 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 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. See Nat'l Tank v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A "substantial chance" of litigation does not mean a statistical probability, but rather "that litigation is more than merely an abstract possibility or unwarranted fear." Id. at 204. Information that meets the work product test is confidential under Rule 192.5 provided the information does not fall within the purview of the exceptions to the privilege enumerated in Rule 192.5(c). Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ). Although you contend that the submitted fee bills are protected under the work product privilege, we find that you have not adequately demonstrated that any of the information in the fee bills was prepared in anticipation of litigation or reflects the mental impressions of an attorney. Therefore, BPUB may not withhold the submitted fee bills under Texas Rule of Civil Procedure 192.5. Because we find that the submitted fee bills are not protected under Texas Rule of Evidence 503 or Texas Rules of Civil Procedure 192.3 or 192.5, we find that BPUB must release the fee bills to the requestor. With respect to the portion of the submitted information that is not subject to section 552.022 of the Government Code, we address your contentions under sections 552.101, 552.103, and 552.107 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." You contend that the submitted information is confidential by law under Texas Rule of Evidence 503 and Texas Rules of Civil Procedure 192.3 and 192.5. This office generally does not address discovery and evidentiary rules that may or may not be applicable to information submitted by a governmental body. See Open Records Decision No. 416 (1984). As we noted above, 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). However, the information at issue does not fall into the categories of information in section 552.022. Because the information at issue does not fall into a section 552.022 category, we conclude that the information may not be withheld on the basis of Rule 503 of the Texas Rules of Evidence or Rule 192.3 or 192.5 of the Texas Rules of Civil Procedure. You also contend that the submitted information is excepted from disclosure under section 552.103 of the Government Code. Section 552.103, the litigation section, states in pertinent part: (a) Information is excepted from the requirements of Section 552.021 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). To secure the protection of section 552.103(a), a governmental body must demonstrate that the requested information "relates" to a pending or reasonably anticipated judicial or quasi-judicial proceeding. Open Records Decision No. 588 (1991). A governmental body has the burden of providing relevant facts and documents to show the applicability of an exception in a particular situation. The test for establishing that section 552.103(a) applies is a two-prong showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Texas Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). In Open Records Decision No. 588, this office determined that contested cases conducted under the Administrative Procedure Act (the "APA"), chapter 2001 of the Government Code, are considered litigation under section 552.103. See Open Records Decision No. 588 at 7 (1991). Moreover, in Open Records Decision No. 301 (1982) we stated: The [Public Information Act (the "act")] does not define "litigation." However, the section [552.103] exception was designed to protect the interests of the state [or a political subdivision] in adversary proceedings . . ., and we have no doubt that "litigation" encompasses proceedings conducted in quasi-judicial forums as well as strictly judicial ones. "Litigation" has been defined by the dictionary to include "a controversy involving adverse parties before an executive governmental agency having quasi-judicial powers and employing quasi-judicial procedures." Webster's Third International Dictionary at 1322. See San Antonio Public Service Company v. Long, 72 S.W.2d 696 (Tex. Civ. App. - San Antonio 1934, no writ). See also V.T.C.S. art. 6252-13a, § 19. Thus, the dispute before an administrative agency may be moved to a judicial forum. The lawsuit is in effect a continuation of the same controversy. We believe the litigation exception may be applied to records relating to a contested case before an administrative agency. Open Records Decision No. 301 at 1-2 (1982). This office has focused on the following factors in determining whether an administrative proceeding is conducted in a quasi-judicial forum: (1) whether the dispute is, for all practical purposes, litigated in an administrative proceeding where (a) discovery takes place, (b) evidence is heard, (c) factual questions are resolved, and (d) a record is made; and (2) whether the proceeding is an adjudicative forum of first jurisdiction. See Open Records Decision No. 588 (1991). You state that BPUB hired Baker Botts "to obtain favorable federal and state action on regulatory approvals and financial assistance for a proposed water project." You further state that BPUB applied for the requisite state and federal permits for the water project, and BPUB was involved in contested cases concerning those applications at both the state and federal level in 1991. According to you, the federal contested cases are still pending. Based on the information you have provided, we understand that the contested cases concerning BPUB's permit applications with the state were no longer pending at the time BPUB received the instant request for information. Furthermore, while you state that federal contested proceedings are pending, you have not provided this office or cited to any rules or provisions governing the federal contested cases at issue, nor have you adequately explained how the federal proceedings amount to "litigation" for purposes of section 552.103(a). Therefore, we conclude that litigation is not reasonably anticipated in this instance, and BPUB may not withhold any of the submitted information under section 552.103(a) of the Government Code. See Open Records Decision Nos. 588 at 7 (1991), 301 at 1-2 (1982). Next, we address your argument under section 552.107 of the Government Code with respect to the portion of the submitted information that is not subject to section 552.022. Section 552.107(1) excepts information that an attorney cannot disclose because of a duty to his client. In Open Records Decision No. 574 (1990), this office concluded that section 552.107 excepts from public 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. Open Records Decision No. 574 at 5 (1990). We agree that some of the submitted information consists of client confidences and attorney advice and opinion. We have marked this information, which BPUB may withhold under section 552.107. Finally, we note that an e-mail address contained in the submitted information may be excepted from disclosure under section 552.137 of the Government Code. Section 552.137 provides that "[a]n e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under [the Public Information Act]."(3) Therefore, unless the individual to whom the e-mail address belongs has affirmatively consented to the release of her e-mail address, BPUB must withhold the e-mail address, which we have marked, under section 552.137. In summary, BPUB may withhold the marked document that is subject to section 552.022(a)(5) under Texas Rule of Evidence 503. BPUB may also withhold other portions of the submitted information that are not subject to section 552.022, which we have marked, under section 552.107 of the Government Code. BPUB must withhold the marked e-mail address under section 552.137 of the Government Code unless the individual to whom the e-mail address belongs consented to its release. BPUB must release the remainder of the submitted 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); 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: Mr. Andrew Wheat
Footnotes 1. You also raised sections 552.110 and 552.133 as possible exceptions to the disclosure of the requested information. However, you have not provided this office with arguments applying those exceptions to the submitted information. Therefore, we will not consider whether the submitted information is excepted from disclosure under either section 552.110 or section 552.133. See Gov't Code §§ 552.301(e), .302. 2. You indicate that a portion of the submitted information consists of a "sample" of requested information. We assume that the 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. 3. The identical exception has been added as section 552.136 of the Government Code. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |