January 29, 2010

Mr. Erik A. Eriksson

General Counsel

Port of Houston Authority

P.O. Box 2562

Houston, Texas 77252-2562

Ms. Susan Denmon Banowsky

Vinson & Elkins

2801 Via Fortuna, Suite 100

Austin, Texas 78746-7568

OR2010-01412

Dear Mr. Eriksson and Ms. Banowsky:

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# 368678.

The Port of Houston Authority (the "authority") received a request for all records regarding disbursements by the authority to a named law firm and to a named attorney during specified period of time. You state you are making some of the responsive information available to the requestor. You claim that portions of the submitted information are excepted from disclosure under section 552.136 of the Government Code and privileged under Texas Rule of Evidence 503. We have considered the submitted arguments and reviewed the submitted representative sample of information. ⁽¹⁾

Initially, we note the submitted information consists of attorney fee bills. Attorney fee bills are subject to section 552.022(a)(16) of the Government Code, which provides that information in a bill for attorney's fees must be released unless it is privileged under the attorney-client privilege or is expressly confidential under other law. See Gov't Code § 552.022(a)(16). You assert portions of the information within the attorney fee bills are privileged under the attorney-client privilege of rule 503 of the Texas Rules of Evidence. The Texas Supreme Court has held that the Texas Rules of Evidence are "other law" within the meaning of section 552.022. See In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). Therefore, we will consider your arguments under rule 503.

Texas Rule of Evidence 503 provides in relevant part:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer;

(B) between the lawyer and the lawyer's representative;

(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;

(D) between representatives of the client or between the client and a representative of the client; or

(E) among lawyers and their representatives representing the same client.

Tex. R. Evid. 503(b)(1). A communication is "confidential" if 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).

Thus, in order to withhold information from disclosure under rule 503, a governmental body must: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the information is privileged and confidential under rule 503, provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). See Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.--Houston [14th Dist.] 1993, no writ).

You state the information you have marked reveals confidential communications between authority employees and representatives and attorneys for the authority. You state these communications were made for the purpose of facilitating the rendition of professional legal services to the authority, and you have identified the parties involved in these communications. You also state these communications were not intended to be disclosed, and have not been disclosed, to third parties. Based on your representations and our review, we conclude the authority may withhold the information we have marked on the basis of the attorney-client privilege under Texas Rule of Evidence 503. Some of the remaining information, however, does not consist of or reveal confidential attorney-client communications. Thus, you have not demonstrated how any of the remaining information constitutes privileged attorney-client communications. Accordingly, the authority may not withhold any of the remaining information under rule 503.

Section 552.136 of the Government Code states "[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." ⁽²⁾ Gov't Code § 552.136. We find the bank account and routing numbers at issue constitute access device numbers for purposes of section 552.136. Thus, the authority must withhold the bank account and routing numbers you have marked under section 552.136 of the Government Code.

In summary, the authority may withhold the information we have marked as privileged under Texas Rule of Evidence 503. The authority must withhold the bank account and routing numbers you have marked under section 552.136 of the Government Code. The remaining information must be released.

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free, at (888) 672-6787.

Sincerely,

Sarah Casterline

Assistant Attorney General

Open Records Division

SEC/eeg

Ref: ID# 368678

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume 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.

2. We note this office recently issued Open Records Decision No. 684 (2009), a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including bank account and routing numbers under section 552.136 of the Government Code, without the necessity of requesting an attorney general decision.

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