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Office of the Attorney General - State of Texas John Cornyn |
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August 15, 2002 Mr. Arturo G. Michel
OR2002-4496 Dear Mr. Michel: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 167203. The Pearland Independent School District (the "district"), which you represent, received a request for information concerning the district's standardized dress code. Specifically, the requestor seeks copies of the following information: legal fees incurred by the district relating to the district's dress policy; the total amount of dress code violations of each campus, and what those violations were; and the videotape from the June 26, 2001 board meeting. You state that you have released some of the requested information to the requestor. You claim, however, that the information you have highlighted is excepted from disclosure under sections 552.101, 552.103, 552.107, 552.111, and 552.114 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note that you did not submit any information responsive to the second and third parts of the request. You state that the second part of the request "is for a document that does not exist, but that the District can create and is willing to do so for an estimated cost and has communicated this to the requestor." As for the third part of the request, you state that, "[t]he third request is for a videotape which the District is unaware of existing and has requested clarification from the requestor." The Public Information Act (the "Act") applies only to information in existence at the time the governmental body receives the request for information. See Open Records Decision Nos. 452 at 2-3 (1986), 342 at 3 (1982). Furthermore, the Act does not require a governmental body to create information in response to a request. See Open Records Decision 452 (1986). Therefore, the Act does not require the district to produce requested information that did not exist when the district received the request. Furthermore, with respect to the third request, you state that the district has requested clarification from the requestor See Gov't Code § 552.222(b) (stating that if information requested is unclear to governmental body or if large amount of information has been requested, governmental body may ask requestor to clarify or narrow request, but may not inquire into purpose for which information will be used). We assume for purposes of this ruling that the district requested clarification regarding the third request within ten business days of the district's receipt of the request. Based on our review of all information that has been submitted to us, it does not appear, however, that the district has yet received the requested clarification. Thus, the district need not respond to the third request until it receives the requestor's clarification. We note, however, that when the district receives the clarification, you must seek a ruling from this office before withholding any of the information that may be responsive to the third request from disclosure. See Open Records Decision No. 663 (1999) (providing for tolling of ten business day deadline for requesting attorney general decision while governmental body awaits clarification). Before we address your arguments, we note that the district states that it has withheld Federal Educational Rights and Privacy Act ("FERPA") information in accordance with Open Records Decision 634. In Open Records Decision No. 634 (1995), this office concluded that (1) an educational agency or institution may withhold from public disclosure information that is protected by FERPA and excepted from required public disclosure by sections 552.026 and 552.101 without the necessity of requesting an attorney general decision as to those exceptions, and (2) an educational agency or institution that is state-funded may withhold from public disclosure information that is excepted from required public disclosure by section 552.114 as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception. After review of the submitted information, we have marked additional information that we believe identifies a district student, and which, consequently, the district must not release to the requestor. 20 U.S.C § 1232g(a); see Gov't Code § 552.026, Open Records Decision No. 634 (1995). We turn now to the submitted information and your arguments. Attorney fee bills, such as those at issue here, are subject to section 552.022(a) of the Government Code, which provides in pertinent part as follows: (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: (16) information that is in a bill for attorney's fees and that is not privileged under the attorney-client privilege[.] Gov't Code § 552.022(a)(16). The submitted information includes documents that are subject to section 552.022(a)(16). These documents must therefore be released under section 552.022 unless the information is expressly made confidential under other law. Sections 552.103, 552.107, and 552.111 of the Government Code are discretionary exceptions under the Public Information Act and do not constitute "other law" for purposes of section 552.022.(1) See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App.-Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive section 552.107(1)), 522 at 4 (1989) (discretionary exceptions in general). Accordingly, we do not address your claims regarding these exceptions to disclosure with respect to the documents that are subject to section 552.022(a) of the Government Code. However, you also argue that the submitted information is confidential under the attorney-client privilege. The attorney-client privilege is found in Rule 503 of the Texas Rules of Evidence. 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 is confidential under Rule 503. 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). After reviewing your arguments and the submitted documents that are subject to section 552.022(a), we find that you have demonstrated that some of the entries contained within the submitted attorney fee bills constitute confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. We have marked the information in the submitted attorney fee bills that the district may withhold from disclosure pursuant to Rule 503. The attorney work product privilege, which you assert also applies to the highlighted portions of the requested information, is similarly considered "other law" for purposes of section 552.022. In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). Thus, we will determine whether the information is confidential under Rule 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 National 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). We have marked the information on the fee bills that you may withhold under the attorney work product privilege. In summary, you may withhold the information that we have marked on the submitted fee bills that is within the attorney-client privilege of Texas Rule of Evidence 503 and the attorney work product privilege of Rule 192.5 of the Texas Rules of Civil Procedure. We have marked information that is subject to FERPA and which, consequently, the district must not release to the requestor. You must release the remaining 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 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, V.G. Schimmel
c: Ms. Susan Manis
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 No. 665 at 2 n.5 (2000) (governmental body may waive litigation exception, section 552.103). Discretionary exceptions therefore do not constitute "other law" that makes information confidential. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |