 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 13, 2006 Mr. Michael W. Dixon
OR2006-01436 Dear Mr. Dixon: 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# 242212. The City of Riesel (the "city") received a request for (1) a copy of the city's budget for the last five years; (2) an itemized income statement from 2000 through 2005; (3) a balance sheet for the city from 2000 through 2005; (4) names of all current city employees including titles, wage rates or salaries, addresses, and telephone numbers; (5) names of all city contractors who provided legal services for the city from 2004 to the present, including copies of all contracts, rates of pay, all addresses and telephone numbers associated with contractors, tax identification numbers, and copies of all correspondence between contractors and the city; (6) an itemized police department budget; (7) an itemized inventory of all police speed detection equipment and all records respecting maintenance, inspection and calibration of that equipment; (8) copies of all licensure information, including peace officer certificates, for the officer involved in ticketing a named individual and all of the officer's superiors on the city's police force; (9) copies of all training reports for the arresting officer and any of the officer's superiors; (10) copies of all traffic tickets written by the arresting officer for from July 2005 through September 2005; (11) any disciplinary reports or complaints for any member of the city police force from 2004 through 2005; and (12) the number of traffic tickets per day written by each member of the city's police force from 2004 to 2005. You state that the city does not maintain portions of the requested information.(1) You claim some information is being released to the requestor, but contend that the submitted information is excepted from disclosure under sections 552.101, 552.102, 552.103, 552.107, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative of sample of information.(2) Initially, we address your claim that a portion of Item 5 of the request relating to all correspondence between contractors and the city from 2004 to the present is overly broad and burdensome and is "nothing more than harassment." We note that the motives of a requestor may not be considered in responding to a request made under the Act. Gov't Code § 552.222(a). In addition, a governmental body must make a good-faith effort to relate a request to information within its possession or control. Open Records Decision No. 561 at 8 (1990); Open Records Decision No. 561. If the information requested is not clear, or if a large amount of information is requested, a governmental body may communicate with the requestor for the purpose of clarifying or narrowing the request. See Gov't Code § 552.222(b); Open Records Decision No. 663 at 2-5 (1999). But a governmental body may not refuse to comply with a request on the ground of administrative inconvenience. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668,687 (Tex. 1976)( "It is our opinion that the [predecessor to the Public Information] Act does not allow either the custodian of records or a court to consider the cost or method of supplying requested information in determining whether such information should be disclosed."); Open Records Decision No. 49 (1988). We therefore find that the city may not refuse to comply with this request on the basis that doing so would be burdensome. Next you contend that Item 4 and a portion of Item 5 consists of interrogatories that require the city to compile information in the form of an answer to the interrogatory. The Act does not require a governmental body to make available information which does not exist nor does it require a governmental body to compile information or prepare new information. See Bustamante, 562 S.W.2d 266; Open Records Decision Nos. 605 (1992), 555 (1990), 362 (1983). Nevertheless, as noted above, the city must make a good-faith effort to relate the request to information that it holds or to which it has access. See Open Records Decision Nos. 563 (1990), 561 (1990), 555 (1990). In other words, if you are able to identify documents in the city's possession from which the requestor could ascertain the answers that he is seeking, you must provide the requestor with those documents. For example, the information the requestor is seeking about the name, title, salary, addresses, and phone numbers may be found in a human resources payroll document. While the Act does not require you to compile the requested information from these documents, you should advise the requestor that he can obtain the information he is seeking from these documents. Furthermore, we note that the name, salary, and title of each employee and officer of a governmental body is public information. See Gov't Code § 552.022(a)(2). We now address your argument that the requested traffic citations (Item 10) are not subject to the Act. You explain that copies of all issued citations are judicial records that are maintained by the municipal court. The Act does not apply to the judiciary or judicial records. Gov't Code § 552.003(1)(B); see also Gov't Code § 552.0035 (stating that access to judicial records is governed by Supreme Court of Texas or other applicable laws or rules). Consequently, the requested traffic citations need not be released under the Act. Attorney General Opinion DM-166 (1992). As records of the judiciary, however, the requested information may be made public by other sources of law. Attorney General Opinions DM-166 at 2-3 (1992) (public has general right to inspect and copy judicial records), H-826 (1976); Open Records Decision No. 25 (1974); see Star Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 (Tex. 1992) (documents filed with courts are generally considered public and must be released). Additionally, the records may be subject to disclosure under statutory law governing municipal courts. See Gov't Code § 29.007(d)(4) (complaints filed with municipal court clerk); id. § 29.007(f) (municipal court clerks shall perform duties prescribed by law for county court clerk); Local Gov't Code § 191.006 (records belonging to office of county clerk shall be open to public unless access restricted by law or court order). Next, we note that a portion of the submitted information consists of attorney fee bills that are subject to section 552.022 of the Government Code, which provides in pertinent 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: . . . (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). Under section 552.022, attorney fee bills must be released unless they are expressly confidential under other law. The city seeks to withhold the submitted information under section 552.107.(3) We note, however, that this section is a discretionary exception to public disclosure that protects the governmental body's interests and may be waived. See Open Records Decision Nos. 676 at 10-11 (2002) (attorney-client privilege under Gov't Code § 552.107(1) may be waived), 665 at 2 n.5 (2000) (discretionary exceptions generally). As such, section 552.107 does not qualify as other law that makes information confidential for the purposes of section 552.022. Therefore, the city may not withhold the submitted attorney fee bills under section 552.107. The Texas Supreme Court has held, however, that the Texas Rules of Evidence and the Texas Rules of Civil Procedure constitute "other law" for purposes of section 552.022 of the Government Code. See In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). This office has determined that when the attorney-client privilege or work product privilege is claimed for information that is subject to release under section 552.022, the proper analysis is whether the information at issue is protected under Texas Rule of Evidence 503 (attorney-client communications) or Texas Rule of Civil Procedure 192.5 (work product). Open Records Decision Nos. 676 at 5-6 (2002), 677 at 8-9 (2002). Accordingly, we will address your attorney-client and work product privilege arguments under rule 503 of the Texas Rules of Evidence and rule 192.5 of the Texas Rules of Civil Procedure. Rule 503(b)(1) provides the following: 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. TEX. R. EVID. 503(b)(1). 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. Id. 503(a)(5). Accordingly, in order to withhold attorney-client privileged information from disclosure under rule 503, a governmental body must do the following: (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. See Open Records Decision No. 676 (2002). Upon a demonstration of all three factors, the entire communication is confidential under rule 503 provided the client has not waived the privilege or the communication does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein); In re Valero Energy Corp., 973 S.W.2d 453, 4527 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (privilege attaches to complete communication, including factual information). Having considered your representations and reviewed the information at issue, we find you have established that some of the information at issue constitutes privileged attorney-client communications. Therefore, the city may withhold this information, which we have marked, under rule 503. However, we conclude you have not established that the remaining section 552.022 information consists of privileged attorney-client communications; therefore, the city may not withhold this information under rule 503. For purposes of section 552.022, information is confidential under rule 192.5 only to the extent the information implicates the core work product aspect of the work product privilege. Open Records Decision No. 677 at 9-10 (2002). Core work product is defined as the work product of an attorney or an attorney's representative developed in anticipation of litigation or for trial that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories. TEX. R. CIV. P. 192.5(a), (b)(1). Accordingly, in order to withhold attorney core work product from disclosure under rule 192.5, a governmental body must demonstrate that the material was (1) created for trial or in anticipation of litigation when the governmental body received the request for information and (2) consists of an attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories. Id. The first prong of the work product test, which requires a governmental body to show that the information at issue was created in anticipation of litigation, has two parts. 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. The second prong of the work product test requires the governmental body to show that the documents at issue contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories. TEX. R. CIV. P. 192.5(b)(1). A document containing core work product information that meets both prongs of 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). Having considered your arguments and reviewed the information at issue, we conclude you have not demonstrated that any of the remaining section 552.022 information consists of core work product for purposes of Texas Rule of Civil Procedure 192.5. Accordingly, the city may not withhold any of the remaining information at issue under rule 192.5. We now address your claims for the information not subject to section 552.022. Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code § 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976), for information claimed to be protected under the doctrine of common law privacy as incorporated by section 552.101.(4) Consequently, we will consider these two exceptions together. Common-law privacy protects information if (1) the information contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Indus. Found., 540 S.W.2d at 685. The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. Upon review, we note the personnel information you seek to withhold relates solely to the training, work conduct, and job performance of police officers and is therefore a matter of legitimate public interest. See Open Records Decision Nos. 470 (1987) (public employee's job performance does not generally constitute employee's private affairs), 455 (1987) (public employee's job performance or abilities generally not protected by privacy), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employee), 423 at 2 (1984) (scope of public employee privacy is narrow); see also Open Records Decision No. 562 at 9 n.2 (1990) (public has interest in preserving the credibility and effectiveness of the police force). Accordingly, we find that none of the submitted information is excepted from disclosure under either section 552.101 or 552.102 of the Government Code. You also argue that the submitted tax identification number is excepted under section 552.101. Prior decisions of this office have held that section 6103(a) of title 26 of the United States Code renders tax return information confidential. See Attorney General Opinion H-1274 (1978) (tax returns); Open Records Decision Nos. 600 (1992) (W-4 forms), 226 (1979) (W-2 forms). Tax return information is defined as data furnished to or collected by the IRS with respect to the determination of possible existence of liability of any person under title 26 of the United States Code for any tax. See 26 U.S.C. § 6103(b). The tax identification number in the submitted information does not fall under the definition of tax return information. See id. We conclude, therefore, that the city may not withhold the tax identification number under section 552.101 of the Government Code as information deemed confidential by federal statute. The city asserts that some of the submitted information relating to Items 8 and 9 is excepted under section 552.103 of the Government Code, which provides as follows: (a) Information is excepted from [required public disclosure] 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). A governmental body has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated on the date the governmental body received the request for information, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). A governmental body must meet both prongs of this test for information to be excepted under section 552.103(a). In this instance, you claim that litigation relating to the subject of the present request is currently pending. Based on your representations, we find that litigation relating to a traffic violation was pending when the city received this request for information. However, after review of your arguments and the information at issue, we conclude you have not established that the information at issue is related to the pending litigation. Therefore, the city may not withhold any of the submitted information under section 552.103. Next, you claim that a portion of the submitted information is excepted from disclosure pursuant to section 552.107 of the Government Code. Section 552.107(1) protects information coming within the attorney-client privilege. Gov't Code § 552.107(1). 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 a 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. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Tex. 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 a 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. Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives. Tex. R. Evid. 503(b)(1)(A), (B), (C), (D), (E). Thus, a governmental body must inform this office of the identities and capacities of the individuals to whom each communication at issue has been made. Finally, the attorney-client privilege applies only to a confidential communication, id. 503(b)(1), meaning it 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) 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). You state that a portion of the submitted information reveals attorney-client communications. Upon review, we agree that the information we have marked is protected by the attorney-client privilege and may be withheld under section 552.107 of the Government Code. We now address your claim under section 552.108 of the Government Code for portions of the remaining submitted information. Section 552.108(a)(1) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). A governmental body that claims an exception to disclosure under section 552.108 must reasonably explain how and why this exception is applicable to the information at issue. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You assert that the information relating to the licensure and training of the officer at issue should be exempt as the prosecution of the individual who was ticketed is pending. Having considered your arguments, we find that you have not demonstrated how or why the release of the remaining information at issue would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.-Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases). We therefore conclude that the city may not withhold any of the submitted information under section 552.108 of the Government Code. Next, you also raise section 552.117(a)(2) for the submitted information. Section 552.117(a)(2) excepts from disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members, regardless of whether the officer complies with section 552.024 or section 552.1175. See Gov't Code § 552.117(a)(2). Section 552.117(a)(2) applies to peace officers as defined by article 2.12 of the Code of Criminal Procedure. Upon review, we find that none of the submitted information pertains to section 552.117(a)(2). Accordingly, we conclude that the city may not withhold any information pursuant to section 552.117(a)(2) of the Government Code. In summary, with the exception of the information we have marked pursuant to rule 503, you must release the information we have marked pursuant to 552.022(a)(16) of the Government Code. You may withhold the information we have marked under section 552.107 of the Government Code. All other remaining information must be released 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, 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, Michael A. Lehmann
c: Mr. Atticus J. Gill
Footnotes 1. The Act does not require a governmental body to release information that did not exist when a request for information was received or to prepare new information in response to a request. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266, 267-68 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 452 at 3 (1986), 362 at 2 (1983). 2. 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. 3. Although you also assert the attorney-client privilege under section 552.101 of the Government Code, we note that section 552.107 is the proper exception for your attorney-client privilege claim. See Open Records Decision No. 676 (2002). 4. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision" and encompasses the doctrine of common law privacy. Gov't Code § 552.101. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |