 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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September 14, 2005 Ms. Sharon Alexander
OR2005-08404 Dear Ms. Alexander: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 232265. The Texas Department of Transportation (the "department") received three requests for information related to an archeological site and a specific road project. You claim that the requested information is excepted from disclosure under sections 552.101, 552.107, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information, some of which consists of representative samples.(1) We also have considered the comments that we received from the requestor. See Gov't Code § 552.304 (any person may submit written comments stating why information at issue in request for attorney general decision should or should not be released). Initially, we note that one of the requestors argues that she has a right of access to the submitted information under the Native American Graves Protection and Repatriation Act ("NAGPRA"), chapter 32 of title 25 of the United States Code. See 43 C.F.R. § 10.5. The department asserts that "the requestor does not have a right to the requested information under [NAGPRA]." The department states that "the project does not occur on Federal or tribal land, [and therefore] it is not subject to work stoppages or other consultation steps [which] apply only to projects on Federal or tribal lands. . . ." See id. Further, the department explains that, although it meets the definition of a museum under NAGPRA, this project "has not advanced to a stage where consultation under NAGPRA would occur." See 25 U.S.C. §§ 3001(8), 3005; 42 C.F.R. § 10.5(b). Thus, based on the information before us, we cannot conclude that the requestor has a right of access to the requested information under NAGPRA.(2) Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information protected by other statutes. Section 191.004 of the Natural Resources Code provides: (a) Information specifying the location of any site or item declared to be a state archeological landmark under Subchapter D of this chapter is not public information. (b) Information specifying the location or nature of an activity covered by a permit or an application for a permit under this chapter is not public information. (c) Information specifying details of a survey to locate state archeological landmarks under this chapter is not public information. Nat. Res. Code § 191.004(a), (b), (c). You state that the submitted information relates to the "specific location and nature of activity covered by a permit or application for a permit under Chapter 191, Natural Resources Code." Based upon your representation and our review of the submitted information, we find that most of the information at issue qualifies as "information specifying the location or nature of an activity covered by a permit or an application for a permit" for the purposes of section 191.004. Therefore, we conclude that the department must withhold the information we have marked under section 191.004(b) of the Natural Resources Code in conjunction with section 552.101 of the Government Code. You claim that the remaining submitted information is excepted under section 552.107(1) of the Government Code, which protects information coming within the attorney-client privilege. When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege in order to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate that the information constitutes or documents communication. Id. at 7. Second, the communication must have been made "for the purpose of facilitating the rendition of professional legal services" to the client governmental body.(3) Tex. R. Evid. 503(b)(1). Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives.(4) Tex. R. Evid. 503(b)(1)(A), (B), (C), (D), (E). Thus, a governmental body seeking to establish that a communication is protected by the attorney-client privilege must inform this office of the identity and capacity of each individual involved in the communication. Finally, the attorney-client privilege applies only to a communication that is confidential. Id. 503(b)(1). A confidential communication is a communication that was "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." Id. 503(a)(5). Whether a communication meets the definition of a confidential communication depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.--Waco 1997, no writ). Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained. Section 552.107(1) of the Government Code generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein). Upon review of your representations and the information at issue, we find you have demonstrated that the records we have marked constitute privileged attorney-client communications. Thus, this information may be withheld under section 552.107 of the Government Code. In summary, we have marked the information that must be withheld under section 552.101 of the Government Code in conjunction with section 191.004(b) of the Natural Resources Code. The department may withhold the remaining submitted information under section 552.107 of the Government Code.(5) 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); Texas 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 Office of the Attorney General 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, Cindy Nettles
c: Mr. James E. Garrett
Ms. Vicki Smiling Water Harraghy
Mr. J. Andres Araiza
Footnotes 1. We assume that the representative sample of records submitted to this office is truly representative of the requested records at issue. 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. 2. Although the requestor does not assert a right to the information under the National Historic Preservation Act, cite, we note that the department states that "[t]he requestor has not submitted a request to become a consulting party under Section 106 [of that act]." See 16 U.S.C. § 470f, 36 C.F.R. § 800. 3. The privilege does not apply when an attorney or representative is acting in a capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.--Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in capacity other than that of attorney). Because government attorneys often act in capacities other than that of professional legal counsel, including as administrators, investigators, or managers, the mere fact that a communication involves an attorney for the government does not demonstrate this element. 4. Specifically, the privilege applies only to confidential communications between the client or a representative of the client and the client's lawyer or a representative of the lawyer; between the lawyer and the lawyer's representative; by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; between representatives of the client or between the client and a representative of the client; or among lawyers and their representatives representing the same client. See Tex. R. Evid. 503(b)(1)(A), (B), (C), (D), (E); see also id. 503(a)(2), (a)(4) (defining "representative of the client," "representative of the lawyer.") 5. Because our ruling is dispositive, we need not address your remaining claimed exception. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |