April 7, 2010

Mr. W. Lee Auvenshine

Assistant Ellis County & District Attorney

Ellis County

1201 North Highway 77, Suite 104

Waxahachie, Texas 75165-7832

OR2010-04856

Dear Mr. Auvenshine:

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# 375187.

Ellis County (the "county") received a request for (1) a list of specified Adult Probation Department employees, (2) the current resumes in the county's files for the specified Adult Probation Department employees, and (3) any communications addressing specified allegations. You state you are releasing the information requested in items one and two. You claim a portion of the submitted information is not subject to the Act. You claim that the remaining information is excepted from disclosure under section 552.111 of the Government Code. We have considered your arguments and reviewed the submitted information.

Initially, you state some of the submitted information was the subject of a previous request for information, in response to which this office issued Open Records Letter No. 2010-02936 (2010). In that ruling, we held that a portion of the submitted information was not subject to disclosure under the Act. We also concluded that portions of the remaining information may be withheld under section 552.111 of the Government Code, and the remaining information must be released. Accordingly, as we have no indication that the law, facts, or circumstances on which our prior ruling was based have changed, you must continue to rely on that prior ruling as a previous determination and withhold or release the information we have marked in accordance with Open Records Letter No. 2010-02936. See Open Records Decision No. 673 (2001) (so long as law, facts, circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure). To the extent that the submitted information is not the precise information previously ruled upon, we will address your arguments against disclosure.

You claim a portion of the submitted information is not subject to the Act because it is being held by the county's Community Supervision and Corrections Department (the "department") on behalf of the judiciary. The Act generally requires the disclosure of information maintained by a "governmental body." See Gov't Code § 552.021. While the Act's definition of a "governmental body" is broad, it specifically excludes "the judiciary." See id. § 552.003(1)(A), (B). In Open Records Decision No. 646 (1996), this office determined that a community supervision and corrections department is a governmental body for purposes of the Act, and that its administrative records, such as personnel records and other records reflecting day-to-day management decisions, are subject to the Act. ORD 646 at 5. On the other hand, we also ruled that specific records regarding individuals on probation and subject to the direct supervision of a court that are held by a community supervision and corrections department are not subject to the Act because such records are held on behalf of the judiciary. Id.; see Gov't Code § 552.003.

You state that a portion of the submitted information is related to three named probationers under the direct supervision of the court. Based on your representation and our review, we find the information we have marked constitutes records held by the department on behalf of the judiciary and is not subject to disclosure under the Act. See ORD 646 at 2-3; Benavides v. Lee, 665 S.W.2d 151 (Tex. App.--San Antonio 1983, no writ) (in determining whether governmental entity falls within judiciary exception, this office looks to whether governmental entity maintains relevant records as agent of judiciary with regard to judicial, as opposed to administrative, functions).

You claim the remaining information is excepted from disclosure under section 552.111 of the Government Code. Section 552.111 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 section encompasses the deliberative process privilege. See Open Records Decision No. 615 at 2 (1993). In Open Records Decision No. 615, this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, and opinions reflecting the policymaking processes of the governmental body. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 364 (Tex. 2000); see also Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152 (Tex. App.--Austin 2001, no pet.). The purpose of section 552.111 is "to protect from public disclosure advice and opinions on policy matters and to encourage frank and open discussion within the agency in connection with its decision-making processes." Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.-- San Antonio 1982, writ ref'd n.r.e.).

An agency's policymaking functions do not encompass internal administrative or personnel matters. Disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. See ORD 615 at 5-6. However, 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). Further, 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).

Section 552.111 can also encompass communications between a governmental body and a third party with a privity of interest. See Open Records Decision No. 561 at 9 (1990) (section 552.111 encompasses communications with party with which governmental body has privity of interest or common deliberative process). When determining if an interagency memorandum is excepted from disclosure under section 552.111, we must consider whether the agencies between which the memorandum is passed share a privity of interest or common deliberative process with regard to the policy matter at issue. See Open Records Decision No. 561 at 9 (1990). For section 552.111 to apply, the governmental body must identify the third party and explain the nature of its relationship with the governmental body. Section 552.111 is not applicable to a communication between the governmental body and a third party unless the governmental body establishes it has a privity of interest or common deliberative process with the third party. See ORD 561 at 9.

You explain that the remaining information consists of communications between department employees and parties who share a privity of interest with the department concerning the placement of offenders. You assert this information consists of advice, opinions, and recommendations related to policymaking decisions of the department. Based on your arguments and our review, we agree that the remaining information consists of the advice, opinions, or recommendations of the department regarding policymaking matters, and the county may withhold the information we have marked under section 552.111 of the Government Code.

In summary, the county must continue to rely on Open Records Letter No. 2010-02936 as a previous determination and withhold or release the information we have marked in accordance with that ruling. The probationer information we have marked constitutes records held by the department on behalf of the judiciary and is not subject to disclosure under the Act. The county may withhold the information we have marked under section 552.111 of the Government Code.

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# 375187

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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