January 21, 2011

Mr. Brett Norbraten

Open Records Attorney

Texas Department of Aging and Disability Services

P.O. Box 149030

Austin, Texas 78714-9030

OR2011-01059

Dear Mr. Norbraten:

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# 407491 (2010SOLEG0218).

The Texas Department of Aging and Disability Services (the "department") received a request for letters, e-mails, or other correspondence pertaining to the denial or potential denial of a "community needs nursing facility Medicaid bed allocation waiver" in Rockwall County submitted by a named company. You state the department is releasing some of the requested information to the requestor. You claim some of the submitted information is excepted from disclosure under section 552.111 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

You assert portions of the remaining e-mails are excepted from disclosure under the deliberative process privilege encompassed by section 552.111 of the Government Code. See Open Records Decision No. 615 at 2 (1993). The purpose of section 552.111 is to protect advice, opinion, and recommendation in the decisional process and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, no writ); Open Records Decision No. 538 at 1-2 (1990).

In Open Records Decision No. 615, this office re-examined the statutory predecessor to section 552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We determined section 552.111 excepts from disclosure only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. See ORD 615 at 5. A governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. Id.; see also City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) (section 552.111 not applicable to personnel-related communications that did not involve policymaking). A governmental body's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). Additionally, section 552.111 does not generally except from disclosure purely factual information severable from the opinion portions of internal memoranda. Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152 (Tex. App.--Austin 2001, no pet.); ORD 615 at 4-5.

You contend the portions of the e-mail you seek to withhold under section 552.111 consists of internal deliberations on "policy-making ideas with respect to the handling of requests for Medicaid bed-related waiver material." Based on your arguments, we find you have sufficiently demonstrated how the information you have marked pertains to the department's policymaking processes. We also find this information contains the advice, recommendations, and opinions of department officials regarding these policy issues. Based on your arguments and our review, we find you have established the deliberative process privilege is applicable to the information you have marked. Accordingly, the department may withhold the marked information under section 552.111 of the Government Code. As you raise no additional exceptions to disclosure, 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,

Tamara Wilcox

Assistant Attorney General

Open Records Division

TW/vb

Ref: ID# 407491

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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