March 26, 2010

Mr. Warren M. S. Ernst

Chief of the General Counsel Division

Office of the City Attorney

1500 Marilla, Room 7BN

Dallas, Texas 75201

OR2010-04278

Dear Mr. Ernst:

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# 374414.

The City of Dallas (the "city") received a request for e-mails that the city did not release in response to the requestor's first request for information. You claim the submitted information is excepted from disclosure under section 552.107 of the Government Code and protected under Rule 503 of the Texas Rules of Evidence. We have considered your arguments and reviewed the submitted representative sample of information. ⁽¹⁾ We have also received and considered comments from the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

Initially, we address the requestor's assertion that the city did not comply with section 552.301 of the Government Code in response to his first request. Section 552.301 prescribes the procedures a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Section 552.301(b) requires that a governmental body ask for a decision from this office and state which exceptions apply to the requested information by the tenth business day after receiving the request. Gov't Code § 552.301(b). The requestor asserts the city failed to comply with section 552.301(b) because it did not release all information responsive to the first request and did not seek a decision for the information the city withheld. The city informs us, and provides documentation showing, the requestor asked for correspondence between the city and Ricci Investments or First National Bank of Edinburg in his first request. The city asserts, and we agree, the information now at issue is not correspondence between the city and Ricci Investments or First National Bank of Edinburg, and therefore was not responsive to the first request. We further note the information now at issue was created after the city received the first request. ⁽²⁾ We therefore conclude the city did not violate section 552.301(b) of the Government Code with regard to the first request because the information now at issue was not responsive to the first request.

Turning to the information now at issue, 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. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate that 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. 503(b)(1), 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 communications now at issue were made between city employees and assistant city attorneys in connection with the rendition of professional legal services to the city. You further state these communications were intended to remain confidential and the confidentiality of the communications has been maintained. Based on your representations and our review, we agree the submitted information constitutes privileged attorney-client communications. Therefore, section 552.107 of the Government Code is generally applicable. However, some of the individual e-mails contained in some of the submitted e-mail strings consist of communications with non-privileged parties. To the extent these non-privileged e-mails, which we have marked, exist separate and apart from the submitted e-mail strings, they may not be withheld under section 552.107. ⁽³⁾

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,

Mack T. Harrison

Assistant Attorney General

Open Records Division

MTH/rl

Ref: ID# 374414

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume that 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 that the Act does not require a governmental body to disclose information that did not exist when the request for information was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d266 (Tex. App.-- San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986).

3. As our ruling is dispositive, we need not address your remaining argument against disclosure.

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