January 30, 2008

Mr. Spencer Reid

General Counsel

Office of the Lieutenant Governor

The Capitol

Austin, Texas 78711-2068

OR2008-01442

Dear Mr. Reid:

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# 300872.

Lieutenant Governor David Dewhurst (the "lieutenant governor") received a request for ten categories of communications and other information involving the Texas Youth Commission ("TYC") and certain specified agencies and individuals. You state that some of the requested information has been released. You seek to withhold other responsive information under sections 552.008, 552.101, 552.106, 552.111, and 552.146 of the Government Code. We have considered your arguments and have reviewed the information you submitted.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information that other statutes make confidential. We understand you to raise section 552.101 in conjunction with section 61.073 of the Human Resources Code, which provides as follows:

The [TYC] shall keep written records of all examinations and conclusions based on them and of all orders concerning the disposition or treatment of each child subject to its control. Except as provided by Section 61.093(c), these records and all other information concerning a child, including personally identifiable information, are not public and are available only according to the provisions of Section 58.005, Family Code, Section 61.0731, Human Resources Code, and Chapter 61, Code of Criminal Procedure.

Hum. Res. Code § 61.073. You note that TYC provided the submitted report to Senator Whitmire, who provided it to the lieutenant governor, and that the report contains a notation by TYC that the report is confidential under section 61.073. Because the report contains information concerning youths in the custody of the TYC, we agree that it falls within the scope of section 61.073. The TYC may disclose information that section 61.073 makes confidential in accordance with the provisions of section 58.005 of the Family Code. See id. Section 58.005(a) provides that records and files concerning a child may be disclosed to a governmental agency if the disclosure is required or authorized by law. See Fam. Code § 58.005(a)(4). Section 552.008 of the Government Code authorizes the disclosure of confidential information to individual members, agencies, or committees of the Texas Legislature for legislative purposes. See Gov't Code § 552.008(a). Section 552.008 further provides that such a disclosure "does not waive or affect the confidentiality of the information for purposes of state or federal law or waive the right to assert exceptions to required disclosure of the information in the future." Id. § 552.008(b). Therefore, based on your representations and our review of the information at issue, we conclude that, as it is clear that the submitted report was obtained for legislative purposes, the lieutenant governor must withhold the report under section 552.101 of the Government Code in conjunction with section 61.073 of the Human Resources Code. We have marked that information accordingly. ⁽¹⁾

You also raise section 552.146 of the Government Code, which excepts from disclosure "[a]ll written or otherwise recorded communications, including conversations, correspondence, and electronic communications, between a member of the legislature or the lieutenant governor and an assistant or employee of the Legislative Budget Board[(the "LBB").]" Id. § 552.146(a). Section 552.146 further provides, however, that "[t]his section does not except from required disclosure a record or memoranda of a communication that occurs in public during an open meeting or public hearing conducted by the [LBB]." Id. § 552.146. You state that some of the submitted information consists of communications between the lieutenant governor's office and the LBB. You also state that the information in question was not used in open or public meetings. Based on your representations and our review of the information at issue, we conclude that the lieutenant governor may withhold the information that we have marked under section 552.146.

Lastly, we address sections 552.106 and 552.111 of the Government Code. 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." Id. § 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, and opinions that reflect the policymaking processes of the governmental body. ⁽²⁾ 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. 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 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).

This office also has 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.

Section 552.106 excepts from disclosure "[a] draft or working paper involved in the preparation of proposed legislation[.]" Gov't Code § 552.106(a). Section 552.106 resembles section 552.111 in that both exceptions protect advice, opinion, and recommendation on policy matters, in order to encourage frank discussion during the policymaking process. See Open Records Decision No. 460 at 3 (1987). However, section 552.106 applies specifically to the legislative process and thus is narrower than section 552.111. Id. The purpose of section 552.106 is to encourage frank discussion on policy matters between the subordinates or advisors of a legislative body and the members of the legislative body. Id. at 2. Therefore, section 552.106 is applicable only to the policy judgments, recommendations, and proposals of persons who are involved in the preparation of proposed legislation and who have an official responsibility to provide such information to members of the legislative body. Id. at 1; see also Open Records Decision Nos. 429 at 5 (1985) (statutory predecessor to Gov't Code § 552.106 not applicable to information relating to governmental entity's efforts to persuade other governmental entities to enact particular ordinances), 367 at 2 (1983) (statutory predecessor applicable to recommendations of executive committee of State Board of Public Accountancy for possible amendments to Public Accountancy Act). Like section 552.111, section 552.106 does not protect purely factual information from public disclosure. See ORD 460 at 2; see also Open Records Decision No. 344 at 3-4 (1982) (for purposes of statutory predecessor, factual information prepared by State Property Tax Board did not reflect policy judgments, recommendations, or proposals concerning drafting of legislation). However, a comparison or analysis of factual information prepared to support proposed legislation is within the scope of section 552.106. See ORD 460 at 2.

You have marked information that the lieutenant governor seeks to withhold under sections 552.106 and 552.111. You state that the marked information contains summaries, analysis, and recommendations that were provided to the lieutenant governor and his key staff by other staff members. We note that the marked information includes draft documents. Based on your representations and our review of the information at issue, we conclude that the lieutenant governor may withhold the information that we have marked under section 552.111. We find that the rest of the information at issue is factual and, as such, may not be withheld under either section 552.111 or section 552.106.

In summary: (1) the lieutenant governor must withhold the marked report under section 552.101 of the Government Code in conjunction with section 61.073 of the Human Resources Code; and (2) the lieutenant governor may withhold the information that we have marked under sections 552.146 and 552.111 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 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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/ma

Ref: ID# 300872

Enc: Submitted documents

c: Mr. Matt Angle

Lone Star Project

6 E Street, SE

Washington, D.C. 20003

(w/o enclosures)

Footnotes

1. As we are able to make this determination, we need not address your other arguments with respect to the report.

2. We note that section 552.111 also protects policy-related communications between agencies, provided that all of the parties to the communications share a common deliberative process or privity of interest. See Open Records Decision No. 561 at 9 (1990).

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