 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 23, 2008 Mr. Robert Martinez Environmental Law Division Texas Commission on Environmental Quality P.O. Box 13087 Austin, Texas 78711-3087 OR2008-01032 Dear Mr. Martinez: 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# 300306. The Texas Commission on Environmental Quality (the "commission") received a request for all documents regarding Bayport Processing, L.L.C. ("Bayport"), including information regarding its hazardous waste permit, financial responsibility, ownership and operator information, membership, and voting trust information. You state that you will provide some of the requested information to the requestor. You claim that some of the submitted information is excepted from disclosure under section 552.107 of the Government Code. Although you take no position with respect to the public availability of the remaining submitted information, you indicate that its release may implicate the proprietary interests of Bayport. Accordingly, you have notified Bayport of the request and of its opportunity to submit arguments to this office. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 allows a governmental body to rely on an interested third party to raise and explain the applicability of the exception to disclosure in certain circumstances). We have considered the exception you claim and reviewed the submitted information. (1) Initially, we note that an interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) of the Government Code to submit its reasons, if any, as to why requested information relating to the party should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, Bayport has not submitted to this office any reasons explaining why the requested information should not be released. Therefore, Bayport has failed to provide us with any basis to conclude that it has a protected proprietary interest in any of the submitted information, and none of its information may be withheld on that basis. See Open Records Decision Nos. 661 at 5-6 (1999) (to prevent disclosure of commercial or financial information, party must show by specific factual evidence, not conclusory or generalized allegations, that release of requested information would cause that party substantial competitive harm), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). Section 552.107(1) of the Government Code protects information that comes 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. 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 Texas 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)-(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). In this instance, you state that the portions of the submitted information that you have highlighted in yellow are attorney-client communications that were made for the purpose of facilitating the rendition of professional legal services to the commission. You explain that these communications were between a commission attorney and commission employees, whom you have identified. Based on your representations, we conclude that the commission may withhold the information you have highlighted in yellow under section 552.107(1) of the Government Code. We note that some of the remaining submitted information is subject to sections 552.101,
552.136, and 552.137 of the Government Code. (2)
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. Section 552.101 encompasses section 6103(a)
of title 26 of the United States Code, which provides that tax return information is
confidential. See 26 U.S.C. § 6103(a)(2), (b)(2)(A), (p)(8); see also Open Records Decision
No. 600 (1992); Attorney General Op. MW-372 (1981). Accordingly, the submitted 1040
income tax forms, which we have marked, are confidential under section 6103(a), and the
commission must withhold them under section 552.101 of the Government Code. Section 552.136 of the Government Code 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. The commission must, therefore, withhold the account numbers we have
marked under section 552.136 of the Government Code. 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). Id. § 552.137 (a)-(c). The e-mail
addresses at issue are not of a type specifically excluded by section 552.137(c), and you do
not inform us that the relevant members of the public have consented to their release.
Therefore, the commission must withhold the e-mail addresses we have marked under
section 552.137. In summary, the commission may withhold the information you have highlighted in yellow
under section 552.107(1). The commission must withhold the tax return information we
have marked under section 552.101 in conjunction with section 6103(a) of title 26 of the
United States Code, the account numbers we have marked under section 552.136, and the
e-mail addresses we have marked under section 552.137. The remaining submitted
information must be released to the requestor. 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 file suit in
Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of
such a challenge, 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 challenge 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, Allan D. Meesey Assistant Attorney General Open Records Division ADM/eeg Ref: ID# 300306 Enc. Submitted documents c: Mr. John Kinzer 505 North Travis Deer Park, Texas 77536 (w/o enclosures) Mr. Jason Miller Bayport Processing, L.L.C. 9500 New Century Drive Pasadena, Texas 77507 (w/o enclosures)
1. To the extent that the information submitted is a representative sample of the information at issue,
we assume that the information 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.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |