March 16, 2011

Ms. Cary Grace

Assistant City Attorney

City of Austin

P. O. Box 1088

Austin, Texas 78767-8828

OR2011-03627

Dear Ms. Grace:

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# 411361.

The City of Austin (the "city") received a request for twelve categories of communications, maps, reports, and other documents related to the city's historic landmark program. You claim that the submitted information is excepted from disclosure under section 552.107 of the Government Code. ⁽¹⁾ We have considered the claimed exception and reviewed the submitted information.

Initially, we note that you have not submitted information responsive to parts seven, eight, and eleven of the request. To the extent information responsive to those parts existed on the date the city received the request, we assume you have released it. See Open Records Decision No. 664 (2000) (if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible). If you have not released any such records, you must do so at this time. See Gov't Code §§ 552.301(a), .302.

We next note that portions of the submitted information, which we have marked, are not responsive to the instant request because they were created outside of the time period specified by the requestor for that category of information. This ruling does not address the public availability of non-responsive information, and the city is not required to release non-responsive information in response to this request.

We next address your argument against disclosure of the submitted responsive information. Section 552.107(1) of the Government Code protects information coming within the attorney-client privilege. Gov't Code § 552.107. When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege. 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 Tex. Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.-- Texarkana 1999, orig. proceeding). 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. Fourth, 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 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 responsive information consists of communications between city attorneys, city employees, and members of the city's Historic Landmark Commission (the "commission"). You state that the commission was created by city ordinance, and its members are appointed by city council, to review applications regarding the city's historic properties. As such, you state that the commission is a client of, and receives legal advice from, the city's attorneys. You indicate the communications were made to facilitate the rendition of legal advice, and have identified the parties to the communications. You state that these communications were made in confidence and have maintained their confidentiality. Based on your representations and our review, we conclude that the city may withhold the submitted responsive information under section 552.107 of the Government Code.

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,

Misty Haberer Barham

Assistant Attorney General

Open Records Division

MHB/eeg

Ref: ID # 411361

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. While you also raised section 552.111 in your initial letter dated January 6, 2011, you have not presented arguments explaining how this exception applies to the submitted information, as required by section 552.301. Thus, we assume you have withdrawn this claim. See Gov't Code § 552.301(e)(1)(A), .302.

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