March 1, 2010

Mr. Robert Martinez

Environmental Law Division

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

OR2010-02933

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# 371621 (PIR No. 09.12.04.03).

The Texas Commission on Environmental Quality (the "commission") received a request for all information regarding a specified study during a specified period of time and all information regarding a second specified study. You state you have released a portion of the requested information to the requestor. You claim that the submitted information is excepted from disclosure under section 552.111 of the Government Code. ⁽¹⁾ We have considered the exception you claim and reviewed the submitted information.

Initially, you state only the information you have highlighted within the submitted documents is responsive to the request. Accordingly, the remaining information is not responsive to the present request. The commission need not release nonresponsive information in response to this request, and this ruling will not address that information.

Section 552.111 of the Government Code 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." Gov't Code § 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, opinions, and other material reflecting the policymaking processes of the governmental body. 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.

You contend that section 552.111 is applicable to all of the responsive information. You state that the information at issue "is utilized as an internal briefing document on legislative activities and current issues regarding Texas Senate District 20." Although you inform our office the information at issue is a draft document, you also state this document is never placed in "final" form and thus have not informed us that this information will be released to the public in its final form. However, you also assert that the responsive information contains advice, opinions, and recommendations relating to the commission's policymaking process. Based on your representations and our review of the submitted information, we conclude that the commission may withhold the information that we have marked under section 552.111 of the Government Code. However, we find that the remaining responsive information consists of purely factual information. Thus, we find you have failed to show how any portion of the remaining responsive information consists of advice, opinions, or recommendations on the policymaking matters of the commission. Accordingly, the remaining responsive information may not be withheld under section 552.111 of the Government Code. As you claim no other exception to disclosure, the remaining responsive 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# 371621

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note that although you raise section 552.107 of the Government Code, you make no arguments to support this exception. Therefore, we assume you have withdrawn your claim that section 552.107 applies to the submitted information.

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