 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 14, 2007 Ms. Mary R. Risner OR2007-10419 Dear Ms. Risner: 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# 286430. The Texas Commission on Environmental Quality (the "commission") received seven requests from the same requestor for information and communications pertaining to the Henry Zumwalt Recycling Facility and the City of Laredo Zacate Creek Wastewater Treatment Plant. You state that you have released a portion of the information to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.107, 552.111, and 552.137 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. (1) Initially, we note that a portion of the information in Tabs 2 and 6 consists of communications pertaining to the commission's request for a ruling to this office in reference to one of the requests at issue. This information, which we have marked, is not responsive to any of the requests submitted after these records were created. This ruling does not address the public availability of information that is not responsive to the request, and the commission need not release such information in response to the request. See Econ. Opportunities Dev. Corp v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.-San Antonio 1978, writ dism'd). Next, you assert that this office has previously ruled on some of the requested information. See Open Records Letter No. 2007-04523 (2007). In that ruling, we concluded that the commission was permitted to withhold certain information pertaining to the recycling facility at issue. Therefore, as we understand you to assert that the four criteria for a "previous determination" established by this office in Open Records Decision No. 673 (2001) have been met, we conclude that the commission must rely on our decision in Open Records Letter No. 2007-04523 with respect to the information requested in this instance that was previously ruled upon in that decision. (2) See Gov't Code § 552.301(f); ORD No. 673. To the extent that the information requested in this instance was not the subject of the ruling in Open Records Letter No. 2007-04523, we will address your arguments. We note that the requestor's June 9, 2007 request seeks information pertaining to the City of Laredo Zacate Creek Wastewater Treatment Plant. We are unable to identify any of submitted information pertaining to this waste water treatment plant. Thus, to the extent any information responsive to this request existed on the date the commission received this request, we assume you have released it. If you have not released any such records, you must do so at this time. See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible). Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. The section encompasses the common-law informer's privilege, which has long been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928). It protects from disclosure the identities of persons who report activities over which the governmental body has criminal or quasi-criminal law-enforcement authority, provided that the subject of the information does not already know the informer's identity. Open Records Decision Nos. 515 at 3 (1988), 208 at 1-2 (1978). The informer's privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to "administrative officials having a duty of inspection or of law enforcement within their particular spheres." Open Records Decision No. 279 at 2 (1981) (citing Wigmore, Evidence, § 2374, at 767 (McNaughton rev. ed. 1961)). The report must be of a violation of a criminal or civil statute. See Open Records Decision Nos. 582 at 2 (1990), 515 at 4-5 (1988). In this instance, you state that some of the information in Tabs 13 and 15 identifies complainants who made environmental complaints to the commission which constitute possible violations of sections 101.4, 110.201, 328.4, 328.5, 330.7, 330.15, and 332.22 of title 30 of the Administrative Code, section 382.085 of the Health and Safety Code, and section 26.121 of the Water Code. However, the information in Tabs 13 and 15 consists only of communications related to general complaints, concerns, and questions from individuals as opposed to particular reports of violations. You have also failed to explain how any of the information in Tabs 13 and 15 constitutes the report of a violation of the ordinances you have listed or how any portion of the information at issue contains the identifying information of an informant. Accordingly, because you have failed to relate any of the communications in Tabs 13 and 15 to the list of potential violations, none of this information may be withheld under section 552.101 on the basis of the informer's privilege. Section 552.101 also encompasses the doctrine of common-law privacy, which protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. Id. at 681-82. The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. Additionally, this office has found that information indicating specific illnesses is protected under common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). Upon review, we find that the information we have marked in Tabs 15 and 16 is protected under common-law privacy, and the commission must withhold this information pursuant to section 552.101 of the Government Code. You assert that Tabs 8, 9, 10, 11, 17, and 18 are excepted from disclosure under section 552.103 of the Government Code, which provides as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. Gov't Code § 552.103(a), (c). The commission has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated on the date the governmental body received the request, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The commission must meet both prongs of this test for information to be excepted under 552.103(a). You state that the commission has incurred costs involved with fire-fighting and remedial operations at the Zumwalt recycling facility, and that the commission is required to pursue a cost recovery action against responsible parties, such as the operator of the recycling facility at issue, under section 361.197 of the Health and Safety Code. See Health and Safety Code § 361.197 (requiring the commission to file cost recovery actions in specified circumstances). You also state that the commission is currently pursuing an enforcement action against the owner of the recycling facility at issue. Therefore, the commission has established that the first prong of section 552.103 is applicable to the submitted information. You further assert that the information in Tabs 8, 9, 10, 11, 17, and 18 relates to the Zumwalt recycling facility and related cost recovery and enforcement actions, including information pertaining to fire-fighting, environmental contamination and impact, contamination sampling, remedial efforts, the facility's history, environmental violations, and possible litigation tactics. Based on your representations and our review, we find that the information in Tabs 8, 9, 10, 11, 17, and 18 is related to the litigation at issue. Accordingly, the commission may withhold Tabs 8, 9, 10, 11, 17, and 18 under section 552.103 of the Government Code. We note, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Next, you claim that Tabs 3, 5, and 7 are excepted from disclosure under section 552.107. Section 552.107(1) of the Government Code protects information 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). Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives. Tex. R. Evid. 503(b)(1). 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 inform us that the information at issue consists of communications made for the purpose of facilitating the rendition of professional legal services related to action at the recycling facility at issue, and that they were between commission staff and attorneys representing the commission. Finally, you state that the communications were intended to be confidential and that the commission has confirmed that the communications have remained confidential. Thus, you may withhold the information in Tabs 3, 5, and 7 under section 552.107 of the Government Code. Next, the commission asserts that the records in Tabs 1, 2, 4, and 6 are protected from disclosure by the attorney work product privilege. 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" and encompasses the attorney work product privilege found in rule 192.5 of the Texas Rules of Civil Procedure. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000); Open Records Decision No. 677 at 4-8 (2002). Rule 192.5 defines work product as (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or (2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees or agents. A governmental body seeking to withhold information under this exception bears the burden of demonstrating that the information was created or developed for trial or in anticipation of litigation by or for a party or a party's representative. Tex. R. Civ. P. 192.5; ORD 677 at 6-8. In order for this office to conclude that the information was made or developed in anticipation of litigation, we must be satisfied that a) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue; and b) the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and [created or obtained the information] for the purpose of preparing for such litigation. Nat'l Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A "substantial chance" of litigation does not mean a statistical probability, but rather "that litigation is more than merely an abstract possibility or unwarranted fear." Id. at 204; ORD 677 at 7. You state that the information at issue was created by the commission and its attorneys in anticipation of litigation pertaining to the recycling facility at issue. Based on these representations and our review, we find that you may withhold the information in Tabs 1, 2, 4, and 6 as attorney work product under section 552.111. Next, you assert that Tab 12 is excepted from disclosure under the deliberative process privilege encompassed by section 552.111. 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. 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). Additionally, section 552.111 does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152 (Tex. App.-Austin 2001, no pet.); ORD 615 at 4-5. This office has also 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 assert that Tab 12 consists of draft documents and communications with attached drafts pertaining to the recycling facility at issue and that the final versions of the drafts have been released to the public. Based on your representations and our review, we find that you have established that the deliberative process privilege is applicable to the submitted drafts and portions of the communications contained in Tab 12. However, you have failed to explain how the factual information contained in the remaining communications constitutes advice, recommendations, opinions, or material reflecting the policymaking processes of the commission. Thus section 552.111 is not applicable to this information. Accordingly, you may withhold all of the drafts in Tab 12 and the marked portions of the communications in Tab 12 under section 552.111 of the Government Code. We note that Tab 13 contains a utility account number. 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." (3) Gov't Code § 552.136(b). The commission must withhold the utility account number marked under section 552.136 of the Government Code. Finally, you assert that some of the remaining information contains e-mail addresses that are excepted from disclosure under section 552.137 of the Government Code, which requires a governmental body to 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 Gov't Code § 552.137 (b). You do not inform us that the owners of the e-mail addresses have affirmatively consented to their release. Therefore, the commission must withhold the e-mail addresses we have marked under section 552.137. In summary, you must withhold the information we have marked in Tabs 15 and 16 under section 552.101 of the Government Code in conjunction with common-law privacy. You may withhold Tabs 8, 9, 10, 11, 17, and 18 under section 552.103 of the Government Code. You may withhold Tabs 3, 5, and 7 under section 552.107. You may withhold Tabs 1, 2, 4, and 6 as attorney work product under section 552.111. You may withhold all of the drafts in Tab 12 and the marked portions of the communications in Tab 12 under the deliberative process privilege encompassed by section 552.111 of the Government Code. You must withhold the utility account number that we have marked in Tab 13. You must withhold the e-mail addresses we have marked in Tabs 12, 13,14, and 15 under section 552.137 of the Government Code. The remaining information must be released. (4) 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/jh Ref: ID# 286430 Enc. Submitted documents c: Mr. Richard Tansey 7550 Country Club Drive Apartment #13308 Laredo, Texas 78041 (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.
The four criteria for this type of "previous determination" are 1) the records or information at issue
are precisely the same records or information that were previously submitted to this office pursuant to
section 552.301(e)(1)(D) of the Government Code; 2) the governmental body which received the request for
the records or information is the same governmental body that previously requested and received a ruling from
the attorney general; 3) the attorney general's prior ruling concluded that the precise records or information are
or are not excepted from disclosure under the Act; and 4) the law, facts, and circumstances on which the prior
attorney general ruling was based have not changed since the issuance of the ruling. See Open Records
Decision No. 673.
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). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |