September 27, 2010

Ms. Andrea Sheehan

Ms. Elizabeth A. Donley

Law Offices of Robert E. Luna, P.C.

4411 North Central Expressway

Dallas, Texas 75205

OR2010-14638

Dear Ms. Sheehan and Ms. Donley:

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# 394871.

The Carrollton-Farmers Branch Independent School District (the "district"), which you represent, received a request for communications with a named individual regarding two specified subjects and payments, billings, or reimbursements on behalf of a second named individual. You state the district has released or will release some information to the requestor. You state the district has redacted student-identifying information pursuant to the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g(a). ⁽¹⁾ You also state the district has redacted e-mail addresses pursuant to Open Records Decision No. 684 (2009). ⁽²⁾ You state the district does not have any payments, billings, or reimbursements on behalf of the second named individual. ⁽³⁾ You claim the submitted information is excepted from disclosure under sections 552.107 and 552.117 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. ⁽⁴⁾

Initially, we note you have marked portions of the submitted information as not responsive to the request. This ruling does not address the public availability of non-responsive information, and the district is not required to release non-responsive information in response to this request.

Next, you inform us Exhibit B-1 is subject to a previous determination issued by this office in Open Records Letter No. 2010-09920 (2010). In that decision, this office ruled the district may withhold the information at issue protected by the attorney-client privilege under section 552.107 of the Government Code. You contend there has not been any change in the facts, law, and circumstances on which the previous ruling is based. Thus, with regard to the requested information that is identical to the information previously requested and ruled on by this office, we conclude the district must continue to rely on our ruling in Open Records Letter No. 2010-09920 as a previous determination and withhold the information at issue in Exhibit B-1 in accordance with that decision. See Open Records Decision No. 673 (2001) (so long as law, facts, and 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 information is or is not excepted from disclosure). However, we will address the submitted argument for Exhibit B-2, which is not subject to the previous determination.

Section 552.107(1) of the Government Code protects information that comes 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 Texas 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 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 state Exhibit B-2 consists of e-mails and facsimiles between district representatives and the district's attorneys. You state these communications were made in furtherance of the rendition of legal services to the district. Additionally, you state these communications were made in confidence and their confidentiality has been maintained. Based on your representations and our review, we find you have demonstrated the applicability of the attorney-client privilege to the information at issue. Accordingly, the district may withhold the information you have marked in Exhibit B-2 under section 552.107 of the Government Code. As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.

In summary, the district must continue to rely on our ruling in Open Records Letter No. 2010-09920 as a previous determination and withhold the information at issue in Exhibit B-1 in accordance with that decision. The district may withhold the information you have marked in Exhibit B-2 under section 552.107 of the Government Code. 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,

Mack T. Harrison

Assistant Attorney General

Open Records Division

MTH/em

Ref: ID# 394871

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. 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. The DOE has determined FERPA determinations must be made by the educational authority in possession of the education records. We have posted a copy of the letter from the DOE to this office on the Attorney General's website: http://www.oag.state.tx.us/open/20060725usdoe.pdf.

2. 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 e-mail addresses of members of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

3. We note the Act does not require a governmental body to release information that did not exist at the time the request for information was received or create new information in response to a request. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.-- San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 452 at 3 (1986), 362 at 2 (1983).

4. We assume 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.

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