 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 18, 2006 Mr. Carey Smith OR2006-14875 Dear Mr. Smith: 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# 266976. The Texas Health and Human Services Commission (the "commission") received a request for emails to or from eleven named commission employees. You claim that the submitted representative sample is excepted from disclosure under sections 552.101, 552.107, 552.111, 552.117, 552.122, 552.136, 552.137, and 552.139 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. (1) We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released). Initially, you claim that some of the submitted emails are not subject to the Act. The Act is only applicable to "public information." See Gov't Code § 552.021. Section 552.002(a) defines public information as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." Gov't Code § 552.002(a). Information that is collected, assembled, or maintained by a third party may be subject to disclosure under the Act if it is maintained for a governmental body, the governmental body owns or has a right of access to the information, and the information pertains to the transaction of official business. See Open Records Decision No. 462 (1987). After reviewing the submitted emails, we agree that the majority of the emails you have marked as not subject to the Act do not constitute "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business" by or for the commission. See Gov't Code § 552.021; see also Open Records Decision No. 635 (1995) (statutory predecessor not applicable to personal information unrelated to official business and created or maintained by state employee involving de minimis use of state resources). However, it appears that some of the submitted communications contain information that is work related. If indeed the information we have marked is work related, then it must be released. If however, this information is not work related, then you may withhold it as information not subject to the Act. Next, you raise section 552.101 of the Government Code. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses information made confidential by statutes such as sections 12.003 and 21.012 of the Human Resources Code which you state excepts a portion of the submitted information. Section 12.003 provides in relevant part: (a) Except for purposes directly connected with the administration of the department's assistance programs, it is an offense for a person to solicit, disclose, receive, or make use of, or to authorize, knowingly permit, participate in, or acquiesce in the use of the names of, or any information concerning, persons applying for or receiving assistance if the information is directly or indirectly derived from the records, papers, files, or communications of the department or acquired by employees of the department in the performance of their official duties. Hum. Res. Code § 12.003(a) (emphasis added). In Open Records Decision No. 584 (1991), this office concluded that "[t]he inclusion of the words 'or any information' juxtaposed with the prohibition on disclosure of the names of the department's clients clearly expresses a legislative intent to encompass the broadest range of individual client information, and not merely the clients' names and addresses." Id. at 3. Consequently, it is the specific information pertaining to individual clients, and not merely the clients' identities, that is made confidential under section 12.003. See Hum. Res. Code § 21.012(a) (requiring provision of safeguards that restrict use or disclosure of information concerning applicants for or recipients of assistance programs to purposes directly connected with administration of programs); Open Records Decision No. 166 (1977). You inform this office that the information at issue relates to or could identify recipients of commission benefits. You also inform us that in this instance the release of the information in question would not be for a purpose directly connected with the administration of the programs to which the information pertains. Based on your representations and our review of the information at issue, we conclude that the information we have marked is confidential under section 12.003 of the Human Resources Code and must be withheld under section 552.101. However, we find that you have failed to demonstrate how the remaining information discloses information concerning applicants and recipients of commission benefits. Therefore, the commission may not withhold the remaining information under section 552.101 in conjunction with sections 12.003 and 21.012 of the Human Resources Code. You state that some of the submitted information is excepted from disclosure under section 552.107 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 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). 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. 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. 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. 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 some of the submitted information consists of confidential communications and documents sent between identified commission attorneys and employees. You also state that these communications were made for the purpose of providing legal advice and that the commission has not shared the information with outside parties. Therefore, based on your representations and our review, we find that the majority of the marked information is protected under the attorney-client privilege and may be withheld under section 552.107 of the Government Code. However, some of this information does not constitute a communication between parties for the purpose of providing legal services. Thus, we find that you have failed to establish that the information we have marked for release constitutes attorney-client communications, and it may not be withheld under section 552.107. Next, you state that a marked portion of the submitted information is excepted from
disclosure under section 552.111 of the Government Code. Section 552.111 of the
Government Code excepts from public disclosure "an interagency or intraagency
memorandum or letter that would not be available by law to a party in litigation with the
agency." Gov't Code § 552.111. This exception encompasses the deliberative process
privilege. See Open Records Decision No. 615 at 2 (1993). The purpose of section 552.111
is to protect advice, opinion, and recommendation in the decisional process and to encourage
open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630
S.W.2d 391, 394 (Tex. App.--San Antonio 1982, no writ); Open Records Decision No. 538
at 1-2 (1990). In Open Records Decision No. 615 (1993), this office re-examined the
statutory predecessor to section 552.111 in light of the decision in Texas Department of
Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We
determined that section 552.111 excepts from disclosure only those internal communications
that consist of advice, recommendations, and opinions reflecting the policymaking processes
of the governmental body. See Open Records Decision No. 615 at 5. Section 552.111 does
not protect facts and written observations of facts and events that are severable from advice,
opinions, and recommendations. See id. But if factual information is so inextricably
intertwined with material involving advice, opinion, or recommendation as to make
severance of the factual data impractical, the factual information also may be withheld under
section 552.111. See Open Records Decision No. 313 at 3 (1982). This office also has
concluded that a preliminary draft of a document that is intended for public release in its final
form necessarily represents the drafter's advice, opinion, and recommendation with regard
to the form and content of the final document, so as to be excepted from disclosure under
section 552.111. See Open Records Decision No. 559 at 2 (1990) (applying statutory
predecessor). Section 552.111 protects factual information in the draft that also will be
included in the final version of the document. See id. at 2-3. Thus, section 552.111
encompasses the entire contents, including comments, underlining, deletions, and
proofreading marks, of a preliminary draft of a policymaking document that will be released
to the public in its final form. See id. at 2. You generally assert that this information consists of advice, opinions, and recommendations of commission staff regarding issues of concern to the commission including the operation of various commission programs. You also assert that a portion of the information constitutes drafts of policymaking documents. Upon review, we have marked the information that consists of advice, opinions, and recommendations that may be withheld under section 552.111 of the Government Code. However, the commission has failed to demonstrate that the remaining information is not facts or written observations of facts and events. Thus, the remaining information is not excepted under section 552.111. You also state that portions of the submitted information may be subject to section 552.117 of the Government Code. Section 552.117(a)(1) excepts from disclosure the home address, home telephone number, social security numbers, and family member information of a current or former official or employee of a governmental body who requests that this information be kept confidential under section 552.024 of the Government Code. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Therefore, the commission may only withhold information under section 552.117(a)(1) on behalf of a current or former official or employee who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. Accordingly, if the employees timely elected to keep their personal information confidential, the commission must withhold the information we have marked under section 552.117(a)(1). The commission may not withhold this information under section 552.117(a)(1) if the employees did not make a timely election to keep their information confidential. Even if an employee's social security number is not protected under section 552.117(a)(1), it must be withheld under section 552.147 of the Government Code. Section 552.147 provides "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Therefore, if the employees did not make a timely election, the commission must withhold the employees' social security number under section 552.147. (2) Next, you state that a marked portion of the submitted information is excepted from disclosure under section 552.122 of the Government Code. Section 552.122 excepts from public disclosure "a test item developed by a … governmental body [.]" Gov't Code § 552.122(b). In Open Records Decision No. 626 (1994), this office determined that the term "test item" in section 552.122 includes "any standard means by which an individual's or group's knowledge or ability in a particular area is evaluated," but does not encompass evaluations of an employee's overall job performance or suitability. Id. at 6. The question of whether specific information falls within the scope of section 552.122(b) must be determined on a case-by-case basis. Id. Traditionally, this office has applied section 552.122 where release of "test items" might compromise the effectiveness of future examinations. Id. at 4-5; see also Open Records Decision No. 118 (1976). Having considered your arguments, we find that the NCIC/TCIC retesting exams contained in the submitted information consist of questions that are a standard means by which an individual's or group's knowledge or ability in a particular area. Further, we find that release of these questions would compromise the effectiveness of the test when used in the future. Thus, the NCIC/TCIC retesting exams qualify as test items, and we conclude that the commission may withhold the exams under section 552.122(b) of the Government Code. Next, you raise section 552.136 for several account numbers in the submitted information. Section 552.136 states that "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136. With respect to one of the marked numbers, you have failed to explain, and the documents do not reflect, what type of account the number refers to or how the number can be used to obtain goods or services. Thus, with the exception of the number we have marked for release, you may withhold the account numbers you have marked under section 552.136. Next, the commission contends the private e-mail addresses in the submitted information are excepted from disclosure under section 552.137. Under section 552.137, a governmental body must withhold the e-mail address of a member of the general public, unless the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. See id.§ 552.137(b). The commission states the individuals have not affirmatively consented to the release of their e-mail addresses contained in the submitted information. However, we note that section 552.137 does not except from disclosure the general e-mail address of a business or the work address of a government employee. Further, certain types of e-mail addresses are not excepted under section 552.137(c). See id. § 552.137(c) (listing four categories of emails that may not be withheld under section 552.137). Accordingly, assuming that the e-mail addresses are not subject to section 552.137(c) we have marked the e-mail addresses that the commission must withhold pursuant to section 552.137. The remaining e-mail addresses may not be withheld. Next, you claim that a portion of the submitted information, which you have marked, is excepted from public disclosure under section 552.139(a) of the Government Code. Section 552.139(a) provides as follows: (a) Information is excepted from the requirements of Section 552.021 if it is information that relates to computer network security or to the design, operation, or defense of a computer network. Gov't Code § 552.139(a). Upon review, we have marked certain user identification numbers and passwords that relate to the commission's network security. You have failed, however, to submit any arguments explaining how the remaining information you seek to withhold falls within the scope of section 552.139. See id. § 552.301(e)(1) (requiring the governmental body to explain the applicability of the raised exception). Accordingly, you may not withhold any of the remaining highlighted information under section 552.139 of the Government Code. Id. Finally, you also assert that some of the submitted information is subject to copyright protection. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of materials that are subject to copyright protection unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990). Accordingly, in releasing the remaining information the department must release copyrighted information only in accordance with copyright law. In summary, the commission need not release the emails that are not subject to the Act. You must withhold the information we have marked under section 552.101 in conjunction with sections 12.003 and 21.012 of the Human Resources Code. You must withhold the personal information marked under section 552.117 to the extent that the employees made their election under section 552.024 prior to the commission receiving this request. If the employees did not make their election under section 552.024, then you must withhold their social security numbers under section 552.147. You must also withhold the personal email addressees we have marked under section 552.137, the account numbers marked under section 552.136, and the network security information under section 552.139. Except for the information we have marked for release, you may withhold the submitted attorney-client communications under section 552.107. You may withhold the information we have marked under section 552.111, and the test items you have submitted under section 552.122. You must release the remaining information subject to copyright. 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, Justin D. Gordon Assistant Attorney General Open Records Division JDG/sdk Ref: ID# 266976 Enc. Submitted documents c: Mr. Roger B. Borgelt Potts & Reilly, L.L.P. 401 West 15th Street Austin, Texas 78701-1655 (w/o enclosures) Footnotes1. 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. 2. We note that section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act.
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