November 2, 2010

Ms. Rebecca Brewer

Abernathy, Roeder, Boyd & Joplin, P.C.

For City of Frisco

P.O. Box 1210

McKinney, Texas 75070

OR2010-16560

Dear Ms. Brewer:

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# 398727.

The City of Frisco (the "city"), which you represent, received a request for any information related to Integrative Biostrategies, LLC and a named individual regarding a health risk study for the city. You state the city will release some of the responsive information to the requestor. You claim that the submitted information is excepted from disclosure under section 552.107 of the Government Code. ⁽¹⁾ We have considered the exception you claim and reviewed the submitted information.

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 that the submitted information includes confidential communications between city employees, its attorneys and special counsel for the purpose of facilitating the rendition of professional legal services to the city. The submitted documents also reflect that they were communicated with third party consultants hired by the city. You inform us that the communications were made in confidence and have maintained their confidentiality. Based on your representations and our review, the city may generally withhold most of the submitted information under section 552.107 of the Government Code. However, we note some of the submitted information consists of communications with outside parties that you have not identified. Therefore, you have failed to demonstrate that this information, which we have marked, constitutes communications between privileged parties and the city may not withhold this information under section 552.107. Further, we note that some of the submitted e-mail strings include communications with non-privileged parties, which are separately responsive to the instant request. If the communications with these non-privileged parties, which we have also marked, exist separate and apart from the e-mail strings in which they appear, then the city may not withhold these communications under section 552.107(1).

We note the remaining information includes an e-mail address subject to section 552.137 of the Government Code, which 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). ⁽²⁾ See Gov't Code § 552.137(a)-(c). The e-mail address at issue is not specifically excluded by section 552.137(c). As such, the e-mail address we have marked must be withheld under section 552.137 of the Government Code, unless the owner of the address has affirmatively consented to its release. ⁽³⁾ As no other exceptions to disclosure have been claimed, the remaining information must be released.

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,

Debbie K. Lee

Assistant Attorney General

Open Records Division

DKL/dls

Ref: ID# 398727

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Although the city raises section 552.101 of the Government Code in conjunction with rule 503 of the Texas Rules of Evidence, this office has concluded that section 552.101 does not encompass discovery privileges. See Open Records Decision Nos. 676 at 1-2 (2002). We note that, in this instance, the proper exception to raise when asserting the attorney-client privilege for information not subject to section 552.022 of the Government Code is section 552.107. See id. We further note that although you also cite to rule 192.5 of the Texas Rules of Civil Procedure, you make no arguments explaining the applicability of the work product privilege to the submitted information. Accordingly, we find that the city has waived its claim under this rule. See Gov't Code § 552.301(e) (governmental body must provide comments explaining why exceptions raised should apply to information requested).

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

3. We note this office 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.

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