 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 25, 2010 Ms. Helen Valkavich Assistant City Attorney City of San Antonio P.O. Box 839966 San Antonio, Texas 7828 OR2010-02879 Dear Ms. Valkavich: 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# 371238 (COSA File No: 09-1530). The City of San Antonio (the "city") received a request for documents or communications pertaining to two specified Office of Municipal Integrity ("OMI") complaint files. You claim that the submitted information is excepted from disclosure under sections 552.107 and 552.111 of the Government Code. (1) We have considered the exceptions you claim and reviewed the submitted information. Initially, we note the request at issue seeks all documents and communications regarding the allegations made in the two specified OMI complaint files that occurred in 2006 and 2007. However, you have only submitted one draft memorandum pertaining to one complaint. To the extent any additional information responsive to the instant request existed on the date the city received the request, we assume you have released it. If not, then 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 552.107(1) of the Government Code protects information coming 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. ORD 676 at 6-7. First, a governmental body must demonstrate 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., 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 pet.). 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 state the submitted information consists of draft memoranda prepared by an assistant city attorney for communication to the staff of OMI. You indicate that these communications were made for the purpose of facilitating the rendition of professional legal services to the city. You have identified all parties to the communication. You state these communications were made in confidence and their confidentiality has been maintained. Based on your representations and our review, we find the city may withhold the submitted information under section 552.107 of the Government Code. (2) 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, Nneka Kanu Assistant Attorney General Open Records Division NK/jb Ref: ID# 371238 Enc. Submitted documents cc: Requestor (w/o enclosures)
1. The city initially raised sections 552.101, 552.102, 552.103, and 552.117, but has since withdrawn
its claim under those exceptions. Further, although you also raise the attorney-client privilege under rule 503
of the Texas Rules of Evidence, we note that section 552.107 is the proper exception to raise for your attorney-client privilege claim in this instance. See Open Records Decision No. 676 (1988).
As our ruling is dispositive, we need not address your remaining argument against disclosure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |