 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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July 2, 2007 Ms. Meredith Ladd OR2007-08369 Dear Ms. Ladd: 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# 283155. The City of McKinney (the "city"), which you represent, received a request for correspondence between specific named city officials and others regarding the development of Collin County Regional Airport, including information relating to the expansion of services and institution of commercial airline operators. You claim that the requested information is excepted from disclosure under sections 552.111 and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. (1) Initially, we note that much of the submitted information is not responsive to the instant request because it was created after the request for information was made. Information that is not responsive to this request, which we have marked, need not be released. Moreover, we do not address such information in this ruling. Section 552.111 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. The purpose of this exception 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 reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. We determined that section 552.111 excepts only those internal communications that consist of advice, recommendations, opinions, and other material reflecting the policymaking processes of a 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 a governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). Further, 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. If, however, the 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 may also be withheld under section 552.111. See Open Records Decision No. 313 at 3 (1982). Section 552.111 can encompass communications between a governmental body and a third party. See Open Records Decision Nos. 631 at 2 (section 552.111 encompasses information created for governmental body by outside consultant acting at governmental body's request and performing task that is within governmental body's authority), 561 at 9 (1990) (section 552.111 encompasses communications with party with which governmental body has privity of interest or common deliberative process), 462 at 14 (1987) (section 552.111 applies to memoranda prepared by governmental body's consultants). For section 552.111 to apply in such instances, the governmental body must identify the third party and explain the nature of its relationship with the governmental body. Section 552.111 is not applicable to a communication between the governmental body and a third party unless the governmental body establishes it has a privity of interest or common deliberative process with the third party. See Open Records Decision No. 561 at 9 (1990). You state that the submitted information represents economic development deliberations. We understand that the information at issue relates to negotiations about this economic development. Upon review, we agree that the information we have marked consists of advice, recommendations, or opinions reflecting the city's position in the development of the Collin County Regional Airport. However, we note that the remaining responsive information consists of communications between the city and third parties with whom the city does not share privity of interest. Accordingly, no part of the remaining responsive information may be withheld under section 552.111. Section 552.131(b) of the Government Code provides that "[u]nless and until an agreement is made with [a] business prospect, information about a financial or other incentive being offered to the business prospect by the governmental body or by another person is excepted from [required public disclosure]." Gov't Code § 552.131(b). You state that the remaining responsive information contains the economic development incentives being offered to a business prospect. You explain that negotiations are ongoing and no final economic development agreements have been finalized. However, upon review, we determine that the remaining responsive information consists of general contract negotiations and does not disclose incentives offered by the city to the business prospect at issue. Accordingly, no part of the remaining responsive information may be withheld pursuant to section 552.131(b). Section 552.137 of the Government Code excepts from disclosure "an e-mail address of a
member of the public that is provided for the purpose of communicating electronically with
a governmental body" unless the member of the public consents to its release or the e-mail
address is of a type specifically excluded by subsection(c). (2)
See id. § 552.137(a)-(c). Section
552.137 does not apply to a government employee's work e-mail address because such an
address is not that of the employee as a "member of the public," but is instead the address
of the individual as a government employee. This section does not protect the work e-mail
addresses of the employees of an entity with which a governmental body has a contractual
relationship. Id. § 552.137(c)(1). You do not inform us that the individuals at issue have
affirmatively consented to the release of their e-mail addresses. Thus, to the extent that the
e-mail addresses we have marked are not specifically excluded by subsection (c)(1), you
must withhold the marked e-mail addresses pursuant to section 552.137 of the Government
Code. In summary, the city may withhold the information we have marked pursuant to
section 552.111 of the Government Code. The city must withhold the e-mail addresses we
have marked, to the extent that they are not excluded by subsection (c)(1), pursuant to section
552.137. The remaining responsive 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, Kara A. Batey Assistant Attorney General Open Records Division KAB/mcf Ref: ID# 283155 Enc. Submitted documents c: Mr. Roy Appleton Staff Writer for The Dallas Morning News c/o Ms. Meredith Ladd 740 East Campbell Road, Suite 800 Richardson, Texas 75081 (w/o enclosures)
1. 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. The Office of the Attorney General will raise mandatory exceptions like sections 552.137 of the
Government Code on behalf of a governmental body, but ordinarily will not raise other exceptions. Open
Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |