February 10, 2011

Mr. Gabriel Garcia

Senior Assistant City Attorney

City of San Antonio

P.O. Box 839966

San Antonio, Texas 78283

OR2011-02067

Dear Mr. Garcia:

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# 408813 (COSA# 10-1919).

The City of San Antonio (the "city") received a request for information maintained by two named former employees related to the El Paso Natural Gas Company. You state you have released most of the requested information. You claim portions of the submitted information are excepted from disclosure under sections 552.107 and 552.111 of the Government Code. Further, although you take no position as to whether the remaining submitted information is excepted under the Act, you state release of the remaining submitted information may implicate the proprietary interests of CPS Energy; Enterprise Partners Products, LP ("Enterprise"); and El Paso Natural Gas ("El Paso"). Accordingly, you state, and provide documentation showing, you notified CPS Energy, Enterprise, and El Paso of the request for information and of their rights to submit arguments to this office as to why their information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (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 received comments from El Paso. We have considered the submitted arguments and reviewed the submitted information.

Initially, 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 information relating to that party should be withheld from public disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, we have not received comments from CPS Energy or Enterprise explaining why their information should not be released. Therefore, we have no basis to conclude CPS Energy or Enterprise have a protected proprietary interest in the information at issue. See id. § 552.110; 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, that 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 (1990). Accordingly, the city may not withhold the information at issue on the basis of any proprietary interest CPS Energy or Enterprise may have in the information.

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 protected by other statutes. Sections 418.176 through 418.180 were added to chapter 418 of the Government Code as part of the Texas Homeland Security Act ("HSA"). El Paso argues portions of Exhibit F are excepted from disclosure under section 418.181 of the Government Code. Section 418.181 provides "[t]hose 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 also 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, and functions vital to the state or the nation"). The fact that information may relate to a governmental body's security concerns or emergency management activities does not make the information per se confidential under the HSA. See Open Records Decision No. 649 at 3 (1996) (language of confidentiality provision controls scope of its protection). Furthermore, the mere recitation by a governmental body of a statute's key terms is not sufficient to demonstrate the applicability of a claimed provision. As with any exception to disclosure, a governmental body asserting one of the confidentiality provisions of the HSA must adequately explain 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).

El Paso states Exhibit F includes documents that provide "information regarding the location of natural gas pipelines" and that include "design, maintenance and operations details" of natural gas pipelines. El Paso argues "[p]ublic disclosure of information that could be useful in attacking energy infrastructure may present a risk to the safe and secure operation of natural gas facilities." Based on these arguments and our review, we agree portions of Exhibit F, which we have marked, identify the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism. Therefore, the city must withhold the marked information in Exhibit F under section 552.101 in conjunction with section 418.181 of the Government Code. However, we find El Paso has not demonstrated how the remaining information in Exhibit F would reveal the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism. Accordingly, the remaining information in Exhibit F is not subject to section 418.181 of the Government Code and may not be withheld under section 552.101 on that basis.

You claim portions of the remaining information are 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. Section 552.111 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. Tex. R. Civ. P. 192.5; 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 claim the attorney work product privilege of section 552.111 of the Government Code for Exhibit C. You state Exhibit C consists of hand-written notes, legal analysis, and other information created by attorneys for the city, including its outside counsel. You inform us the information was created during the process of negotiations with El Paso while weighing the merits of litigation. Thus, you state the information at issue was created in reasonable anticipation of litigation. Based on your representations and our review, we find the city has demonstrated the applicability of the attorney work product privilege to Exhibit C. Accordingly, the city may withhold Exhibit C under section 552.111 of the Government Code. ⁽¹⁾

Section 552.111 of the Government Code also encompasses the deliberative process privilege. 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 that consist 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).

Further, section 552.111 does not protect facts and written observations of facts and events that are severable from advice, opinions, and recommendations. Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152 (Tex. App.--Austin 2001, no pet.); see ORD 615 at 5. But if factual information is so inextricably intertwined with material involving advice, opinion, or recommendation as to make severance of the factual data impractical, the factual information also may be withheld under section 552.111. See Open Records Decision No. 313 at 3 (1982).

This office has also concluded a preliminary draft of a document that is intended for public release in its final form necessarily represents the drafter's advice, opinion, and recommendation with regard to the form and content of the final document, so as to be excepted from disclosure under section 552.111. See Open Records Decision No. 559 at 2 (1990) (applying statutory predecessor). Section 552.111 protects factual information in the draft that also will be included in the final version of the document. See id. at 2-3. Thus, section 552.111 encompasses the entire contents, including comments, underlining, deletions, and proofreading marks, of a preliminary draft of a policymaking document that will be released to the public in its final form. See id. at 2.

Section 552.111 can also encompass communications between a governmental body and a third party, including a consultant or other party with a privity of interest. See Open Records Decision No. 561 at 9 (1990) (section 552.111 encompasses communications with party with which governmental body has privity of interest or common deliberative process). For section 552.111 to apply, the governmental body must identify the third party and explain the nature of its relationship with the governmental body. Section 552.111 is not applicable to a communication between the governmental body and a third party unless the governmental body establishes it has a privity of interest or common deliberative process with the third party. See id.

You assert Exhibit D contains opinions, recommendations, supporting information, and advice reflecting preliminary thoughts and analyses of department directors, the city's attorneys, and city staff. You state Exhibit D also contains preliminary draft documents that have been released or are intended for release in their final form. We note the information at issue pertains to policymaking relating to gas pipelines within the city. Thus, upon review, we find some of the information in Exhibit D reveals advice, opinions, or recommendations that pertain to the policymaking functions of the city. Accordingly, the city may withhold portions of Exhibit D, which we have marked, under the deliberative process privilege of section 552.111 of the Government Code. However, we find the remaining information at issue consists either of general administrative information that does not relate to policymaking or information that is purely factual in nature. Accordingly, you have failed to demonstrate the applicability of section 552.111 to the remaining information in Exhibit D, and none of it may be withheld on that basis.

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. See 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. See 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. See 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 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. See 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 claim Exhibit B is protected by section 552.107 of the Government Code. You state the information at issue consists of communications involving the city's attorneys and outside counsel and city employees. You indicate the communications were made for the purpose of facilitating the rendition of professional legal services to the city and that these communications have remained confidential. Based on your representations and our review, we find you have demonstrated the applicability of the attorney-client privilege to Exhibit B. Accordingly, the city may generally withhold Exhibit B under section 552.107 of the Government Code. We note several of the individual e-mails contained in the otherwise privileged e-mail strings are communications with individuals whom you have not shown to be privileged parties. Thus, to the extent these non-privileged e-mails, which we have marked, exist separate and apart from the submitted e-mail strings, they may not be withheld under section 552.107.

In summary, the city must withhold the marked information in Exhibit F under section 552.101 in conjunction with section 418.181 of the Government Code. The city may withhold Exhibit C under the attorney work-product privilege of section 552.111 of the Government Code. The city may withhold the marked portions of Exhibit D under the deliberative process privilege of section 552.111 of the Government Code. The city may withhold Exhibit B under section 552.107 of the Government Code; however, to the extent the marked non-privileged e-mails exist separate and apart from the otherwise privileged e-mail strings, the non-privileged e-mails may not be withheld under section 552.107. 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,

Claire V. Morris Sloan

Assistant Attorney General

Open Records Division

CVMS/dls

Ref: ID# 408813

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. James D. Johnston

El Paso Corporation

P.O. Box 2511

Houston, Texas 77252-2511

(w/o enclosures)

Ms. Carolyn Shellman

Senior Vice President and Chief Counsel

CPS Energy

P.O. Box 1771

San Antonio, Texas 78296-1771

(w/o enclosures)

Legal Department

Enterprise Products Partners, L.P.

1100 Louisiana Street

Houston, Texas 77002

(w/o enclosures)

Footnotes

1. As our ruling is dispositive with respect to this information, we need not address your remaining argument against its disclosure.

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