 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 2, 2007 Ms. Paula J. Alexander OR2007-09869 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# 285566. The Metropolitan Transit Authority of Harris County (the "authority") received a request for six categories of information pertaining to claim # RT07-00970. You state that you will release portions of the responsive information. You state that the authority does not maintain any information responsive to one of the categories. (1) You claim that the submitted information is excepted from disclosure under section 552.111 of the Government Code. We have considered the exception you claim and reviewed the submitted information. We understand you to claim that the authority has requested clarification of one category of the request, but has not received a response. (2) Accordingly, the authority has no further obligation to respond to this category of the request at this time. However, should the authority receive clarification and seek to withhold any information encompassed by the clarified portion of the request, the authority must request another ruling. See Gov't Code §§ 552.301(a), .302. Initially, we note that some of the submitted information was created after the request for information was received by the authority. This information, which we have marked, is not responsive to the present request. See Open Records Decision No. 452 at 3 (1986) (governmental body not required to disclose information that did not exist at the time request was received). This ruling does not address the public availability of information that is not responsive to the request, and the authority need not release such information in response to the request. 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." 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 ORD 615, 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 ORD 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. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) (section 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). Further, section 552.111 does not protect facts and written observations of facts and events that are severable from advice, opinions, and recommendations. See ORD 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 contend that the submitted information represents an internal "claims adjuster's advice, opinions, and/or recommendations." Upon review, we conclude that the information we have marked reflects advice, recommendations, or opinions on policymaking matters and the authority may withhold this information under section 552.111 of the Government Code. However, the remaining submitted information must be released to the requestor. (3) 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, M. Alan Akin Assistant Attorney General Open Records Division MAA/jb Ref: ID# 285566 Enc. Submitted documents c: Mr. Stanley Smith 10011 Valley Lake Drive Houston, Texas 77078 (w/o enclosures)
1. The Act does not require a governmental body that receives a request for information to create
information that did not exist when the request was received. See Econ. Opportunities Dev. Corp. v.
Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision
Nos. 605 at 2 (1992), 563 at 8 (1990), 555 at 1-2 (1990).
See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of
clarifying or narrowing request for information); Open Records Decision No. 663 at 2-5 (1999) (addressing
circumstances under which governmental body's communications with requestor to clarify or narrow request
will toll ten-business-day deadline to request decision under section 552.301(b)).
We note that, since the requestor has a right of access to his own e-mail address, the authority must
again seek a decision from this office if it receives another request for the same information from another
requestor. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (privacy theories not
implicated when individual asks governmental body to provide him with information concerning himself). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |