February 4, 2008

Mr. Anthony C. McGettrick

Assistant City Attorney

City of Laredo

P.O. Box 579

Laredo, Texas 78042-0579

OR2008-01537

Dear Mr. McGettrick:

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# 301172.

The City of Laredo (the "city") received four requests for the draft report submitted to the city regarding the three proposed sites for the fifth international bridge. You claim that the submitted information is excepted from disclosure under sections 552.105 and 552.106 of the Government Code. We have considered the exceptions you claim and reviewed the information you have submitted. We have also received and considered comments from a representative of the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released).

Section 552.105 excepts from disclosure information relating to:

(1) the location of real or personal property for a public purpose prior to public announcement of the project; or

(2) appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property.

Id. § 552.105. We note that this provision is designed to protect a governmental body's planning and negotiating position with regard to particular transactions. See Open Records Decision Nos. 564 (1990), 357 (1982), 310 (1982). Information that is excepted from disclosure under section 552.105 that pertains to such negotiations may be excepted from disclosure so long as the transaction relating to that information is not complete. See ORD 310. But the protection offered by section 552.105 is not limited solely to transactions not yet finalized. This office has concluded that information about specific parcels of land obtained in advance of other parcels to be acquired for the same project could be withheld where release of the information would harm the governmental body's negotiating position with respect to the remaining parcels. See ORD 564 at 2. A governmental body may withhold information "which, if released, would impair or tend to impair [its] 'planning and negotiating position in regard to particular transactions."' ORD 357 at 3 (quoting Open Records Decision No. 222 (1979)). The question of whether specific information, if publicly released, would impair a governmental body's planning and negotiating position with regard to particular transactions is a question of fact. Accordingly, this office will accept a governmental body's good-faith determination in this regard, unless the contrary is clearly shown as a matter of law. See ORD 564. You state that the submitted information constitutes a preliminary draft of a document prepared by consulting engineers retained by the city. The city does not inform us, however, that it has made a good-faith determination that public disclosure of the submitted information would impair the city's planning and negotiating position with regard to a specific transaction. Having considered the city's arguments, we conclude that you have not demonstrated that any of the requested information is excepted from disclosure under section 552.105.

Section 552.106 of the Government Code excepts from public disclosure "[a] draft or working paper involved in the preparation of proposed legislation[.]" Gov't Code § 552.106(a). Section 552.106 ordinarily applies only to persons with a responsibility to prepare information and proposals for a legislative body. See Open Records Decision No. 460 at 1 (1987). 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 does not except purely factual information from disclosure. Id. at 2. 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.

The city seeks to withhold the submitted information under section 552.106 of the Government Code. In support of your argument, you cite Open Records Decision No. 429 (1985), which states that the statutory predecessor to section 552.106 of the Government Code "involves the internal deliberative process of a governmental body relevant to the enactment of legislation." ORD 429 at 4. The information at issue in Open Records Decision No. 429 was letters written by a third party requesting the cities of Dallas, Addison, and Farmers Branch to perform an action that would require these cities to enact city ordinances. See id. The letters also suggested the terms of the requested ordinances. See id. Thus, the information at issue in Open Records Decision No. 429 pertained to the enactment of legislation. You state that the city council requested the submitted information. You do not, however, inform us that the city council requested this information for purposes of enacting legislation. Therefore, you have not demonstrated how the submitted information pertains to policy judgments, recommendations, and proposals of persons who are involved in the preparation of proposed legislation. Therefore, you have failed to demonstrate how section 552.106 is applicable to the submitted information and it may not be withheld on this basis. As you raise no other arguments against disclosure of the submitted information, it 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,

Melanie J. Villars

Assistant Attorney General

Open Records Division

MJV/jh

Ref: ID# 301172

Enc. Submitted documents

c: Ms. Ashley Richards

Laredo Morning Times

c/o City of Laredo

P.O. Box 579

Laredo, Texas 78042-0579

Mr. Clay Reddick

c/o City of Laredo

P.O. Box 579

Laredo, Texas 78042-0579

Ms. Jackie Gil

c/o City of Laredo

P.O. Box 579

Laredo, Texas 78042-0579

Mr. Alan Peters

c/o City of Laredo

P.O. Box 579

Laredo, Texas 78042-0579

(w/o enclosures)

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