July 22, 2010

Ms. Hilary Haglund Walker

Haglund Law Firm, P.C.

P.O. Box 713

Lufkin, Texas 75902-0713

OR2010-10989

Dear Ms. Walker:

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# 387630.

The Livingston Independent School District (the "district"), which you represent, received a request for all reports, communications, correspondence, e-mails, and text messages during a specified period of time concerning a specified incident involving the requestor's son. You state the district will release some of the requested information. You claim that the submitted information is excepted from disclosure under sections 552.107, 552.108, 552.111, and 552.114 of the Government Code. ⁽¹⁾ We have considered the exceptions you claim and reviewed the submitted information.

Initially, you inform us the district asked the requestor to clarify the request. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information); see also City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex. 2010). You state the district has not received a response to its request for clarification. However, a governmental body must make a good-faith effort to relate a request for information held by the governmental body. See Open Records Decision No. 561 at 8 (1990). In this case, as you have submitted responsive information for our review and raised exceptions to disclosure for this information, we consider the district to have made a good-faith effort to identify the information that is responsive to the request, and we will address the applicability of the claimed exceptions to the submitted information. We further determine the district has no obligation at this time to release any additional information that may be responsive to the request for which it has not received clarification. However, if the requestor responds to the request for clarification, the district must again seek a ruling from this office before withholding any additional responsive information from the requestor. See City of Dallas, 304 S.W.3d at 387.

Next, we note the submitted information may contain unredacted education records that are subject to the Family Educational Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code. The United States Department of Education Family Policy Compliance Office (the "DOE") has informed this office that FERPA does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act. ⁽²⁾ Because our office is prohibited from reviewing education records, we will not address FERPA with respect to the submitted information, other than to note a parent has a right of access to his child's education records. 20 U.S.C. § 1232g(a)(1)(A); 34 C.F.R. § 99.3. We note, however, the DOE has informed this office a parent's right of access under FERPA to information about that parent's child does not prevail over an educational institution's right to assert the attorney-client and attorney work product privileges. ⁽³⁾ Should the district determine all or portions of the requested information consist of education records, the district must dispose of the information in accordance with FERPA, rather than the Act.

Section 552.114(a) excepts from disclosure information in a student record at an educational institution funded wholly or partly by state revenue. A state-funded educational institution may withhold information that is excepted from disclosure under section 552.114 as a "student record," insofar as the "student record" is protected by FERPA. Because the protection under section 552.114 is the same as under FERPA, we also do not address your argument under section 552.114 of the Government Code. Open Records Decision No. 539 (1990) (determining the same analysis applies under section 552.114 of the Government Code and FERPA). We will, however, address the applicability of the remaining claimed exception to the submitted information.

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 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). Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. Thus, the mere fact that a communication involves an attorney for the government does not demonstrate this element. Third, the privilege applies only to communications between or among clients, client representatives, lawyers, lawyer representatives, and a lawyer representing another party or its representative, in a pending action and concerning a matter of common interest therein. See Tex. R. Evid. 503(b)(1)(A)-(E). 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 seek to withhold the information you have marked under section 552.107 of the Government Code. You indicate the information at issue consists of confidential communications between attorneys for the district and district staff. We understand you to assert these communications were made for the purpose of facilitating the rendition of professional legal advice pertaining to the district. Upon review, we find you have established that the most of the information you have marked constitutes privileged attorney-client communications. However, we note that some of the individual e-mails in the submitted e-mail chains consist of communications with a non-privileged party. Thus, to the extent these non-privileged e-mails, which we have marked, exist separate and apart from the submitted e-mail chains, the district must release them to the requestor. Further, you have failed to demonstrate how the remaining information at issue, which we have marked for release, consists of a privileged attorney-client communication. Thus, with the exception of the information marked for release, the district may withhold the information you have marked under section 552.107 of the Government Code.

Next, you claim that some of the submitted information is excepted under section 552.108 of the Government Code. Section 552.108(a)(2) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.]" Gov't Code § 552.108(a)(2). Section 552.108(a)(4)(B) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . it is information that . . . reflects the mental impressions or legal reasoning of an attorney representing the state." Id. § 552.108(a)(4)(B). By its terms, section 552.108 applies only to a law enforcement agency or a prosecutor. A school district is not a law enforcement agency. Accordingly, you have failed to demonstrate that section 552.108 applies. But see Open Records Decision No. 474 (1987) (predecessor statute to section 552.108(a)(1) may be invoked by a proper custodian when a criminal incident is still under active investigation or prosecution and law enforcement entity represents that release of records will interfere with investigation or prosecution). Therefore, the district may not withhold any of the information at issue under section 552.108(a)(2) or section 552.108(a)(4)(B) of the Government Code.

Next, you claim some of the remaining information is excepted from disclosure under section 552.111 of the Government Code. Section 552.111 excepts from disclosure "an interagency or intra-agency 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 attorney work product privilege found in rule 192.5 of the Texas Rules of Civil Procedure. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000); Open Records Decision No. 677 at 4-8 (2002). Rule 192.5 defines work product as

(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or

(2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees or agents.

Tex. R. Civ. P. 192.5. A governmental body seeking to withhold information under this exception bears the burden of demonstrating the information was created or developed for trial or in anticipation of litigation by or for a party or a party's representative. Id. ; ORD 677 at 6-8. In order for this office to conclude the information was made or developed in anticipation of litigation, we must be satisfied

a) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue; and b) the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and [created or obtained the information] for the purpose of preparing for such litigation.

Nat'l Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A "substantial chance" of litigation does not mean a statistical probability, but rather "that litigation is more than merely an abstract possibility or unwarranted fear." Id. at 204; ORD 677 at 7.

You generally claim portions of the remaining information disclose attorney work product. However, you make no arguments to support this position. See Gov't Code § 552.301(e). Further, you do not state, and we are unable to determine, any portion of the information at issue was created for trial or in anticipation for litigation. Accordingly, the district may not withhold any of the remaining information under the work product privilege of section 552.111 of the Government Code.

We note that, to the extent the non-privileged e-mails exist separate and apart from the submitted e-mail chains, the remaining information contains a personal e-mail address. Section 552.137 of the Government Code excepts from disclosure "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body" unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c). ⁽⁴⁾ Gov't Code § 552.137(a)-(c). The e-mail address listed in the information at issue is not specifically excluded by section 552.137(c). Therefore, the district must withhold the e-mail address we have marked under section 552.137 of the Government Code, unless the owner of the e-mail address has affirmatively consented to its release. ⁽⁵⁾

In summary, this ruling does not address the applicability of FERPA to the submitted information. Should the district determine that all or portions of the information consists of an "education record" subject to FERPA, the district must dispose of the information in accordance with FERPA, rather than the Act. With the exception of the information marked for release, the district may withhold the information you have marked under section 552.107 of the Government Code; however, to the extent the non-privileged e-mails, which we have marked, exist separate and apart from the submitted e-mail chains, the district may not withhold them under section 552.107. The district must withhold the e-mail address we have marked under section 552.137 of the Government Code, unless the owner of the e-mail address has affirmatively consented to its release. The remaining information must be released to the requestor.

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# 387630

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Although you also raise Texas Rule of Evidence 503 and Texas Rule of Civil Procedure 192.5, we note that, in this instance, the proper exceptions to raise when asserting the attorney-client privilege and attorney work product privileges for information not subject to section 552.022 are sections 552.107 and 552.111. See Open Records Decision No. 676 at 1-2 (2002).

2. A copy of this letter may be found on the attorney general's website, http://www.oag.state.tx.us/open/20060725usdoe.pdf.

3. Ordinarily, FERPA prevails over an inconsistent provision of state law. See Equal Employment Opportunity Comm'n v. City of Orange, Tex., 905 F.Supp. 381, 382 (E.D. Tex. 1995); Open Records Decision No. 431 at 3 (1985).

4. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

5. We note this office recently issued Open Records Decision No. 684 (2009), a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including an e-mail address of a member of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

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