December 9, 2010

Mr. Charles K. Kimbrough

Bickerstaff, Heath, Delgado, Acosta, LLP

3711 South Mopac Expressway

Building One, Suite 300

Austin, Texas 78746

OR2010-18443

Dear Mr. Kimbrough:

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# 400894.

Blanco County (the "county"), which you represent, received a request for specified information pertaining to a particular lawsuit, the purchase of land for a new courthouse annex, jail inmates, new jail construction, and jail construction finances. You state the county has made available some of the requested information to the requestor, but assert the submitted information is either not subject to the Act or excepted from disclosure under sections 552.101 and 552.107 of the Government Code. You also state, and provide documentation showing, you notified interested third parties of the county's receipt of the request for information and of the right of each to submit arguments to this office as to why the requested information should not be released to the requestor. ⁽¹⁾

See Gov't Code § 552.305(d); see also Open Records Decision No. 542 at 3 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in the Act in certain circumstances). We have considered your arguments and reviewed the submitted information.

The Act only applies to information that is "collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business by a governmental body." Gov't Code § 552.002(a)(1). The Act does not apply to records of the judiciary. Id. § 552.003(1)(B) (definition of "governmental body" under Act specifically excludes the judiciary). Information that is "collected, assembled or maintained by or for the judiciary" is not subject to the Act. Id. § 552.0035(a); see also Tex. Sup. Ct. R. 12. Consequently, records of the judiciary need not be released under the Act. See Attorney General Opinion DM-166 (1992). You inform us the information in Exhibit 4 pertains to a lawsuit filed in the Judicial District Court in Blanco County. You assert "[a]ll documents in the District Court case file . . . are currently on file in the Office of the District Clerk of Blanco Texas." Thus, we understand the clerk is the custodian of the court case files for the District Court and the requested information in Exhibit 4 is maintained by the clerk as an agent of the judiciary. Accordingly, we agree Exhibit 4 consists of records of the judiciary and is, thus, not subject to the Act. Accordingly, the county is not required to release Exhibit 4 in response to the present request.

You also assert the information in Exhibit 7 consists of records of the judiciary. This office has also determined that a grand jury, for purposes of the Act, is a part of the judiciary and, therefore, not subject to the Act. Open Records Decision No. 411 (1984). Further, records kept by another person or entity acting as an agent for a grand jury are considered to be records in the constructive possession of the grand jury and, therefore, are not subject to the Act. See Open Records Decisions Nos. 513 (1988), 411 (1984), 398 (1983). However, the fact that information collected or prepared by a governmental body is submitted to a grand jury, when taken alone, does not mean the information is in the grand jury's constructive possession when the same information is also held by the governmental body. Information not produced as a result of the grand jury's investigation may be protected from disclosure under one of the Act's exceptions, but it is not excluded from the reach of the Act by the judiciary exclusion. ORD 513 at 4.

You inform us the county clerk provided copies of the information in Exhibit 7 to the Federal Bureau of Investigation pursuant to a federal grand jury subpoena. You argue that, because this information was subpoenaed by the federal grand jury, it consists of judicial records. However, we understand the county holds this information in its own capacity in the course of official county business. Exhibit 7 is, therefore, subject to the Act. See Gov't Code § 552.002 (providing that information collected, assembled, or maintained in connection with the transaction of official business by a governmental body is "public information"). Accordingly, we will address the applicability of the Act to the information at issue.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information made confidential by other statutes. You raise section 552.101 in conjunction with sections 418.181 and 418.182 of the Government Code, which were added to chapter 418 of the Government Code as part of the Texas Homeland Security Act (the "HSA"). Section 418.181 provides as follows:

Those documents or portions of documents in the possession of a governmental entity are confidential if they identify the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism.

Id. § 418.181. See generally id. § 421.001 (defining critical infrastructure to include "all public or private assets, systems, and functions vital to the security, governance, public health and safety, economy, or morale of the state or the nation"). Section 418.182 provides in relevant part as follows:

(a) Except as provided by subsections (b) and (c), information, including access codes and passwords, in the possession of a governmental entity that relates to the specifications, operating procedures, or location of a security system used to protect public or private property from an act of terrorism or related criminal activity is confidential.

(b) Financial information in the possession of a governmental entity that relates to the expenditure of funds by a governmental entity for a security system is public information that is not excepted from required disclosure under Chapter 552.

Id. § 418.182(a)-(b). The fact that information may relate to a governmental body's security measures does not make the information per se confidential under the Texas Homeland Security Act. See Open Records Decision No. 649 at 3 (1996) (language of confidentiality provision controls scope of its protection). Furthermore, the mere recitation of a statute's key terms is not sufficient to demonstrate the applicability of the claimed provision. As with any exception to disclosure, a claim under section 418.181 or 418.182 must be accompanied by an adequate explanation of how the responsive records fall within the scope of the claimed provision. See Gov't Code § 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies).

You assert some of the submitted information is confidential under sections 418.181 and 418.182. The information at issue pertains to the construction of a county jail and county courthouse annex. You assert these buildings constitute critical infrastructure and that the information at issue identifies the technical details of particular vulnerabilities of this critical infrastructure to an act of terrorism. See id. § 421.001. In particular, you assert release of the information at issue could result in a breach of the utility, security, lock-up, and fire detection or control systems, assault of employees, theft of property, and riots or escapes of prisoners. The county sheriff also asserts release of the information at issue related to the jail and annex would provide a terrorist or other criminal actor technical details, specifications, or locations of certain construction and security details, including wall and roof construction details, floor plans, wiring and plumbing specifications, and locations of surveillance cameras.

Upon review of the arguments and the information at issue, we agree the county has demonstrated that release of the following submitted information identifies the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism: the information you seek to withhold in Exhibit C; ⁽²⁾

sheet numbers A6.0, A6.5, A7.5, A7.6, E1.3, and E3.1 in Exhibit D; the information we have marked in Exhibit E; and Exhibit F in its entirety. Therefore, the county must withhold this information under section 552.101 in conjunction with section 418.181 of the Government Code. However, we find the county has not demonstrated the reference to the security system allowance on the cover sheet in Exhibit D or the remaining information you seek to withhold in Exhibit E reveals the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism:. See id. § 418.181. The reference to the security system allowance you seek to withhold is subject to 418.182(b) because it consists of financial information relating to the expenditure of funds by the county for a security system; therefore, this information is not confidential under section 418.182(a). See id. § 418.182(b); see also id. § 418.182(a) (section 418.182(a) not applicable to information subject to section 418.182(b)). Furthermore, we find the county has failed to demonstrate that any of the remaining information at issue is related to the specifications, operating procedures, or location of a security system for the purposes of section 418.182(a) of the Government Code. See id. § 418.182(a). Thus, the county may not withhold this information under section 552.101 in conjunction with section 418.181 or 418.182.

You contend Exhibit 7 is excepted from disclosure under section 552.101 in conjunction with Rule 6 of the Federal Rules of Criminal Procedure. Rule 6(e) provides in pertinent part the following:

(2) Secrecy.

(A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).

(B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of a recording device;

(v) a person who transcribes recorded testimony;

(vi) an attorney for the government; or

(vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).

(3) Exceptions.

(A) Disclosure of a grand-jury matter-other than the grand jury's deliberations or any grand juror's vote-may be made to:

. . .

(ii) any government personnel-including those of a state, state subdivision, Indian tribe, or foreign government-that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law; or

. . .

(6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.

Fed. R. Crim. Pro. 6(e)(2), (3)(A)(ii), (6). Rule 6(e)(2), in its prescription of secrecy, refers to the previous subsection, which provides that "[a]ll proceedings, except when the grand jury is deliberating or voting, shall be recorded stenographically or by an electronic recording device." Id. 6(e)(1). Although you assert Exhibit 7 is confidential under Rule 6, you have not shown the county or any employee of the county received this information as a result of being among the persons subject to the secrecy rule. See id. 6(e)(2), (3). Accordingly, we must conclude the information in Exhibit 7 did not come into the possession of the county or any of its officials by operation of, or statutory exception to, the secrecy rule. See id. Moreover, section 6(e)(2) states no obligation of secrecy may be imposed on any person except in accordance with this rule. See id. 6(e)(2). Therefore, we find you have not established that Rule 6 of the Federal Rules of Criminal Procedure makes Exhibit 7 confidential, and the county may not withhold any of that information under section 552.101 on that ground.

Section 552.101 also encompasses section 551.104(c) of the Government Code, which provides "[t]he certified agenda or tape of a closed meeting is available for public inspection and copying only under a court order issued under Subsection (b)(3)." Thus, such information cannot be released to a member of the public in response to an open records request. See Attorney General Opinion JM-995 at 5-6 (1988) (public disclosure of certified agenda of closed meeting may be accomplished only under procedures provided in Open Meetings Act). Section 551.146 makes it a criminal offense to disclose a certified agenda or tape recording of a lawfully closed meeting to a member of the public. See Gov't Code § 551.146(a)-(b); see also Open Records Decision No. 495 at 4 (1988) (attorney general lacks authority to review certified agendas or tapes of executive sessions to determine whether governmental body may withhold such information under statutory predecessor to Gov't Code § 552.101). Based on your arguments, we understand the information at issue contains records of a closed meeting. Accordingly, the county must withhold the requested closed session recordings from public disclosure under section 552.101 of the Government Code in conjunction with section 551.104(c) of the Government Code. ⁽³⁾

Section 552.101 also encompasses section 154.073 of the Civil Practice and Remedies Code, which provides in part the following:

(a) Except as provided by Subsections (c), (d), (e), and (f), a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, whether before or after the institution of formal judicial proceedings, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding. ⁽⁴⁾

(b) Any record made at an alternative dispute resolution procedure is confidential, and the participants or the third party facilitating the procedure may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.

Civ. Prac. & Rem. Code § 154.073(a)-(b). In Open Records Decision No. 658 (1998), this office found that communications during the formal settlement process were intended to be confidential. See Open Records Decision No. 658 at 4: see also Gov't Code § 2009.054(c).

You inform us Exhibit 6 pertains to a lawsuit between the county and the Texas Historical Commission that resulted in an agreed final judgment: Texas Historical Comm'n v. Blanco County, Texas, Cause No. CV06448 (33rd Dist. Ct., Blanco County, Texas, filed Oct. 16, 2007). You state the parties agreed to first mediate this dispute under chapter 154 of the Texas Civil Practice and Remedies Code. You assert Exhibit 6 contains "confidential communications relating to the mediation procedure that occurred in Cause No. CV06448, including: (a) communications made by the [c]ounty's attorney to and from the mediator; (b) the [c]ounty's mediation position paper . . . submitted to the mediator prior to the mediation conference; and (c) the handwritten notes of the attorneys at the mediation conference related to a preliminary draft of the mediation settlement agreement." Based on your representations and our review, we agree the county must withhold Exhibit 6 under section 552.101 of the Government Code in conjunction with section 154.073 of the Civil Practice and Remedies Code.

You assert Exhibit 3 is excepted under section 552.107 of the Government Code. Section 552.107(1) 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 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, and lawyer representatives. Tex. R. Evid. 503(b)(1). 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., 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 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 explain the information in Exhibit 3 constitutes confidential communications between representatives of and attorneys for the county that were made in furtherance of the rendition of professional legal services. You also assert the communications were intended to be confidential and their confidentiality has been maintained. We note, however, that some of the information in Exhibit 3 includes communications with a mediator, an Assistant Attorney General representing the Texas Historical Commission, and third-party consultants, one of which the county was negotiating with to enter into an agreement for services. You have not explained how these individuals are privileged parties with respect to these communications. Accordingly, we conclude you have not established these communications fall within the attorney-client privilege. Thus, the county may not withhold this information, which we have marked for release, under section 552.107(1). Exhibit 3 also includes handwritten notes and related research materials. We find you have failed to explain how these items constitute or document communications; thus, the county may also not withhold this information, which we have also marked for release, under section 552.107(1). After reviewing your arguments, however, we agree the remaining information in Exhibit 3 constitutes privileged attorney-client communications that the county may withhold under section 552.107(1). We note some of the privileged e-mail strings include communications with non-privileged parties. If the communications with these non-privileged parties, which we have marked, exist separate and apart from the e-mail strings in which they appear, then the county may not withhold the communications with the non-privileged parties under section 552.107(1).

We note that some of the remaining information is excepted under section 552.136 of the Government Code. Section 552.136(b) provides that "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." The county must withhold the account numbers we have marked under section 552.136.

Some of the remaining information contains e-mail addresses of members of the public. 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). ⁽⁵⁾ See Gov't Code § 552.137(a)-(c). Section 552.137 does not apply to a government employee's work e-mail address because such an address is not that of the employee as a "member of the public," but is instead the address of the individual as a government employee. The e-mail addresses at issue do not appear to be of a type specifically excluded by section 552.137(c). You do not inform us a member of the public has affirmatively consented to the release of any e-mail address contained in the submitted materials. Therefore, the county must withhold the e-mail addresses we have marked in Exhibit 3 under section 552.137.

We also note some of the materials at issue may be protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Open Records Decision No. 180 at 3 (1977). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id.; see Open Records Decision No. 109 (1975). If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit.

Finally, we note an interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) to submit its reasons, if any, as to why requested information relating to it should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, no interested third party has submitted to this office any reasons explaining why the requested information should not be released. Thus, we have no basis for concluding any portion of the submitted information constitutes proprietary information of any of the interested third parties, and the county may not withhold any portion of the remaining information on that basis. See Open Records Decision Nos. 661 at 5-6 (1999) (to prevent disclosure of commercial or financial information, party must show by specific factual evidence, not conclusory or generalized allegations, release of requested information would cause that party substantial competitive harm), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3.

In summary, (1) the county is not required to release Exhibit 4 because it consists of records of the judiciary; (2) the county must withhold the following documents under section 552.101 of the Government Code in conjunction with section 418.181 of the Government Code: the information you seek to withhold in Exhibit C ⁽⁶⁾

; sheet nos. A6.0, A6.5, A7.5, A7.6, E1.3, and E3.1 in Exhibit D; the information we have marked in Exhibit E; and Exhibit F in its entirety; (3) the county must withhold the submitted closed session recordings under section 552.101 of the Government Code in conjunction with section 551.104(c) of the Government Code; (4) the county must withhold Exhibit 6 under section 552.101of the Government Code in conjunction with section 154.073 of the Civil Practice and Remedies Code; (5) with the exception of the information marked for release, the county may withhold Exhibit 3 under section 552.107(1) of the Government Code; however, to the extent the non-privileged e-mails we have marked in Exhibit 3 exist separate and apart from the submitted e-mail strings, they may not be withheld under section 552.107(1); (6) the county must withhold the information we have marked under section 552.136 of the Government Code; and (7) the county must withhold the e-mail addresses we have marked under section 552.137 of the Government Code. ⁽⁷⁾

The county must release the remaining information, but any copyrighted information may only be released in accordance with copyright law.

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,

James L. Coggeshall

Assistant Attorney General

Open Records Division

JLC/tf

Ref: ID# 400894

Enc. Submitted documents

c: Requestor

(w/o enclosures)