 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 28, 2007 Ms. Carol Longoria OR2007-02371 Dear Ms. Longoria: 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# 272504. The University of Texas Health Science Center at Houston ( "UTHSCH") received a request for information relating to a proposed license agreement during a specified time interval. You state that UTHSCH will release some of the requested information. You claim that other responsive information is excepted from disclosure under sections 552.101, 552.107, 552.111, and 552.117 of the Government Code. You also believe that this request for information implicates the interests of a third-party, McGraw-Hill Companies, Inc. ("McGraw-Hill"). You notified McGraw-Hill of this request for information and of its right to submit arguments to this office as to why the requested information should not be released. (1) We have considered the exceptions you claim and have reviewed the information you submitted. (2) We first note that an interested third party is allowed ten business days from the date of its receipt of the governmental body's notice under section 552.305 of the Government Code to submit its reasons, if any, as to why information relating to that party should not be released. See Gov't Code § 552.305(d)(2)(B). As of the date of this decision, this office has received no correspondence from McGraw-Hill. Thus, McGraw-Hill has not demonstrated that any of the submitted information is either confidential or proprietary for the purposes of the Act. See Gov't Code §§ 552.101, .110(a)-(b); Open Records Decision Nos. 552 at 5 (1990), 661 at 5-6 (1999). We next note that the documents at Tab 9 include a contract that is subject to section 552.022 of the Government Code. Section 552.022(a)(3) provides for the required public disclosure of "information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body," unless the information is expressly confidential under other law. Gov't Code § 552.022(a)(3). We have marked the information that is subject to section 552.022(a)(3). Although UTHSCH seeks to withhold information at Tab 9 under section 552.111 of the Government Code, that section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See id. § 552.007; Open Records Decision Nos. 665 at 2 n.5 (discretionary exceptions generally), 470 at 7 (1987) (statutory predecessor to Gov't Code § 552.111 subject to waiver). As such, section 552.111 is not other law that makes information confidential for the purposes of section 552.022. Therefore, UTHSCH may not withhold any of the information that is subject to section 552.022 under section 552.111. We note, however, that section 552.136 of the Government Code is applicable to some of the information that is subject to section 552.022(a)(3). (3) Section 552.136(b) states that "[n]otwithstanding any other provision of [the Act], 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(b); see also id. § 552.136(a) (defining "access device"). We have marked information contained in the contract that UTHSCH must withhold under section 552.136. Next, we address UTHSCH's claimed exceptions to disclosure. Section 552.107(1) of the Government Code protects information that comes within the attorney-client privilege. (4) 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 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 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), (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. 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. 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 contend that the information at Tabs 6 and 7 is excepted from disclosure under section 552.107(1). You state that the information in question consists of or documents communications among attorneys for and client representatives of UTHSCH that were made in connection with the provision of professional legal services to UTHSCH. You indicate that UTHSCH has maintained the confidentiality of these communications. Based on your representations, we conclude that UTHSCH may withhold the information at Tabs 6 and 7 under section 552.107(1). 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." 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, opinions, and other material reflecting the policymaking processes of the governmental body. See Open Records Decision No. 615 at 5. A governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. Id.; see also City of Garland v. The Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) (Gov't Code § 552.111 not applicable to personnel-related communications that did not involve policymaking). A governmental body's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). Moreover, section 552.111 does not protect facts and written observations of facts and events that are severable from advice, opinions, and recommendations. See Open Records Decision No. 615 at 5. 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). You seek to withhold information at Tabs 8 and 9 under section 552.111. You assert that the communications in question relate to the interpretation and application of UTHSCH policies governing ownership and licensing of intellectual properties. Based on your representations, we conclude that UTHSCH may withhold the information that we have marked under section 552.111. Section 552.117(a)(1) of the Government Code excepts from disclosure the home address and telephone number, social security number, 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 item of information is protected by section 552.117(a)(1) must be determined at the time of the governmental body's receipt of the request for the information. See Open Records Decision No. 530 at 5 (1989). Thus, information may only be withheld 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 of the governmental body's receipt of the request for the information. Information may not be withheld under section 552.117(a)(1) on behalf of a current or former official or employee who did not timely request under section 552.024 that the information be kept confidential. Therefore, UTHSCH must withhold the telephone number that you have marked in Tab 10 under section 552.117(a)(1) if it is the home telephone number of a UTHSCH official or employee who timely requested confidentiality for that information under section 552.024. In summary: (1) except for the marked information that UTHSCH must withhold under section 552.136 of the Government Code, the marked contract must be released under section 552.022(a)(3) of the Government Code; (2) UTHSCH may withhold the information at Tabs 6 and 7 under section 552.107(1) of the Government Code; (3) UTHSCH may withhold the marked information at Tabs 8 and 9 under section 552.111 of the Government Code; and (4) the marked telephone number at Tab 10 must be withheld under section 552.117(a)(1) of the Government Code if it is the home telephone number of a UTHSCH official or employee who timely requested confidentiality for that information under section 552.024 of the Government Code. The rest of the submitted information must be released. 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, James W. Morris, III Assistant Attorney General Open Records Division JWM/eb Ref: ID# 272504 Enc: Submitted documents c: Dr. Kristi L. Santi The Santi Group P.O. Box 20766 Houston, Texas 77225 (w/o enclosures) Ms. Ellen Desmarais McGraw-Hill Companies, Inc. 2 Penn Plaza Floor 12 New York, New York 10121 (w/o enclosures)
1. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to Gov't
Code § 552.305 permitted governmental body to rely on interested third party to raise and explain applicability
of exception to disclosure under certain circumstances).
This letter ruling assumes that the submitted representative sample of information is truly
representative of the requested information as a whole. This ruling neither reaches nor authorizes UTHSCH
to withhold any information that is substantially different from the submitted information. See Gov't Code §§
552.301(e)(1)(D), .302; Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).
Unlike other exceptions to disclosure under the Act, this office will raise section 552.136 on behalf
of a governmental body, as this exception is mandatory and may not be waived. See Gov't Code §§ 552.007,
.352; Open Records Decision No. 674 at 3 n.4 (2001) (mandatory exceptions).
Although UTHSCH also claims the attorney-client privilege under section 552.101 of the Government
Code, that exception does not encompass discovery privileges. See Open Records Decision No. 676 at 1-3
(2002). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |