 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 28, 2006 Ms. Sharon Alexander OR2006-13918 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# 265479. The Texas Department of Transportation (the "department") received a request for all emails and records of phone calls since November 1, 2005, regarding a named department employee. You state that the department will release most of the requested information. However, you claim that a portion of the requested email correspondence is no longer in the possession of the department, and you also claim that some of the requested information is excepted from disclosure under sections 552.107 and 552.111 of the Government Code. (1) We have considered the exceptions you claim and reviewed the submitted representative sample of information. (2) We first address your comments regarding electronic files that have been deleted and are no longer maintained by the department. The Act does not require a governmental body to disclose information that did not exist at the time the request was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex.Civ.App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986). First, you state that the department does not possess printed copies of some of the requested e-mail messages. You further state that, other than the emails that you are releasing or seeking to withhold, any other email messages are not saved on the hard drive, are not in any trash or recycle bin, are not saved in the email archive, and have been deleted from the file allocation table (FAT) system. Thus, you indicate that to the extent the e-mail messages exist as computer files, they may be recorded on the tape backup system maintained by the department for disaster recovery or auditing purposes. In general, computer software programs keep track of the location of files by storing the location of data in the "file allocation table" (FAT) of a computer's hard disk. The software then displays the file as being in a specific storage location. Usually, but not always, when a file is "deleted," it is not actually deleted, but the display of the location is merely shown to be moved to a "trash bin" or "recycle bin." Later, when files are "deleted" or "emptied" from these "trash bins," the data is usually not deleted, but the location of the data is deleted from the FAT. Some software programs immediately delete the location information from the FAT when a file is deleted. Once the location reference is deleted from the FAT, the data may be overwritten and permanently removed. As noted, you inform us that a portion of the requested e-mail messages were not saved to the hard drives of the computers used by the employees. You further explain that to restore the e-mail messages, the department would have to review backup database logs and load the necessary backup tapes and restore post office data. Based on your representations that the e-mail messages have been deleted and are not maintained on the hard drives of the computers at issue, we find that the locations of the files have been deleted from the FAT system. We therefore determine that the e-mail messages at issue were no longer being "maintained" by the department at the time of the request, and are not public information subject to disclosure under the Act. See Econ. Opportunities Dev. Corp, 562 S.W.2d 266; see also Gov't Code §§ 552.002, 552.021 (public information consists of information collected, assembled, or maintained by or for governmental body in connection with transaction of official business). Accordingly, we conclude that the Act does not require the department to release the requested e-mail messages at issue in this instance. Section 552.107 of the Government Code protects information that comes 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. See 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. See 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. See 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). Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. Thus, 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. See Tex. R. Evid. 503(b)(1)(A)- (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. Lastly, 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 this definition depends on the intent of the parties involved at the time the information was communicated. See 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. Exhibit B contains e-mails sent by and among attorneys and employees of the department. You state that the information at issue consists of confidential communications that were made in connection with the rendition of professional legal services. Based on these representations and our review, we conclude that the department may withhold the information in Exhibit B under section 552.107(1). As our ruling is dispositive, we need not address your remaining claim against disclosure. 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, Gilbert N. Saenz Assistant Attorney General Open Records Division GNS/dh Ref: ID# 265479 Enc. Submitted documents c: Texas Logos, L.P. c/o Stephen G. Gleboff Hughes & Luce, L.L.P. 1717 Main Street, Suite 2800 Dallas, Texas 75201 (w/o enclosures)
1. Although you also raise the attorney client privilege under section 552.101 of the Government Code,
we note that the appropriate exception to assert when claiming the attorney-client privilege is section 552.107
of the Government Code. See Open Records Decision No. 676 at 2-3 (2002) (appropriate law for claim of
attorney-client privilege for information not subject to section 552.022 is section 552.107(1) of Government
Code).
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.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |