 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
|
July 12, 2005 Mr. David Pagan
OR2005-06153 Dear Mr. Pagan: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code, the Public Information Act (the "Act"). Your request was assigned ID# 228099. The Texas Office of State-Federal Relations (the "OSFR") received a request for (1) any and all "Reports of State Agency Travel to Washington," (2) any and all lobby contracts entered into, (3) any and all documents relating to open bids for lobby contracts, (4) any and all documents submitted by applicants for lobby contracts, (5) any and all documents, reports, summaries to or from the Federalist Group or its employees, (6) any and all expense statements submitted by any lobby firm or lobbyist, and (7) any and all documents to or from Rep. Tom DeLay or employees of his Congressional office, his campaign, or Americans for a Republican Majority PAC. OSFR claims that the submitted conference call notes are excepted from disclosure under section 552.111 of the Government Code. To the extent that the remaining requested information exists, we assume OSFR has released it. If not, OSFR must do so. See Gov't Code §§ 552.301, .302. We have considered the exception OSFR claims and reviewed the submitted information. Section 552.111 of the Government Code 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. Tex. 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. 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). OSFR explains that it "develops policy advice, opinions, and recommendations in its role of advising the agency's Advisory Policy Board [the "board"], made up of the Governor, Lt. Governor, and Speaker of the House of Representatives." See Gov't Code §§ 751.010 (board shall work with OSFR director and discuss federal activities and issues with state agency representatives), .011 (board shall review OSFR's priorities and strategies and deliver to director any suggested modifications). OSFR argues that all of the submitted documents "contain advice, opinions, and recommendations by OSFR relating to policy and strategy concerning pending action at the federal level by the Administration or U.S. Congress" and "reveal ongoing intra-agency or interagency deliberations relating to federal matters still unresolved." OSFR also states that the submitted documents include "federal policy and strategy discussions between agency staff and outside consultants" which "consist of advice and opinions that are confidential and excepted from disclosure under section 552.111." After reviewing OSFR's arguments and the information at issue, we have marked a representative sample of information in Exhibit B that consists of advice, opinions, and recommendations of OSFR staff and outside consultants concerning policy issues that OSFR may withhold under section 552.111 of the Government Code. OSFR must release the factual information from Exhibit B. 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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, Yen-Ha Le
c: Mr. Andrew Wheat
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |