 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
June 18, 2010 Mr. Trent B. Krienke Davis & Wilkerson, P.C. P.O. Box 2283 Austin, Texas 78768-2283 OR2010-08965 Dear Mr. Krienke: 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# 383214. The Scurry County Hospital District d/b/a D.M. Cogdell Memorial Hospital (the "district"), which you represent, received three identical requests from the same requestor for a specified report. You claim that the submitted information is excepted from disclosure under sections 552.102, 552.107, and 552.111 of the Government Code and privileged under rule 503 of the Texas Rules of Evidence. We have considered the exceptions you claim and reviewed the submitted information. We have also received and considered comments submitted by the requestor. See Gov't Code § 552.304 (interested party may submit written comments regarding availability of requested information). Initially, we note the submitted information is subject to section 552.022 of the Government Code. Section 552.022(a) provides in relevant part: the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.] Id. § 552.022(a)(1). The submitted information consists of a completed report created for the district and thus is subject to section 552.022(a)(1). Although you raise sections 552.107 and 552.111 of the Government Code for the submitted information, these sections are discretionary exceptions to disclosure that are intended to protect only the interests of the governmental body and may be waived. See Open Records Decision Nos. 677 at 10 (2002) (attorney work product privilege under section 552.111 may be waived), 676 at 10 (2002) (attorney-client privilege under section 552.107(1) may be waived), 665 at 2 n.5 (2000) (discretionary exceptions generally), 470 at 7 (1987) (statutory predecessor to section 552.111 may be waived). As such, sections 552.107 and 552.111 do not constitute "other law" that makes information confidential. Accordingly, we conclude the district may not withhold any of the submitted information under sections 552.107 or 552.111. Because section 552.102 is "other law" for purposes of section 552.022, we will consider your argument under this section. In addition, the Texas Supreme Court has held the Texas Rules of Evidence are "other law" that makes information expressly confidential for the purposes of section 552.022. Accordingly, we will also consider the applicability of rule 503 of the Texas Rules of Evidence to the submitted information. Rule 503(b)(1) provides the following: 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). Accordingly, in order to withhold attorney-client privileged information from disclosure under rule 503, a governmental body must do the following: (1) show 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 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. See ORD 676. Upon a demonstration of all three factors, the entire communication is confidential under rule 503 provided the client has not waived the privilege or the communication does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein); In re Valero Energy Corp., 973 S.W.2d 453, 4527 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (privilege attaches to complete communication, including factual information). The district states, and provides documentation showing, that the submitted report was created under a retainer agreement between the attorney representing the district and the certified public accounting firm that created the report. The district further states that the accounting firm was retained in order for the district's attorney to provide legal services to the district. The district also states that this report was communicated in confidence and has maintained its confidentiality. Based on these representations and our review of the information, we agree the submitted report is protected by the attorney-client privilege. We therefore conclude the district may withhold the submitted information pursuant to rule 503 of the Texas Rules of Evidence. As our ruling is dispositive, we need not address the district's remaining argument against disclosure. 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, Jennifer Burnett Assistant Attorney General Open Records Division JB/dls Ref: ID# 383214 Enc. Submitted documents c: Requestor (w/o enclosures)
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |