 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 18, 2011 Ms. Katie Anderson Strasburg & Price, LLP 901 Main Street, Suite 4400 Dallas, Texas 75202-3794 OR2011-03778 Dear Ms. Anderson: 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# 411833. The Cedar Hill Independent School District (the "district"), which you represent, received a request for the investigation of a named individual. You state you have provided some information to the requestor. You claim that the submitted information is excepted from disclosure under section 552.107 of the Government Code and privileged pursuant to rule 503 of the Texas Rules of Evidence. (1) We have considered your arguments and reviewed the submitted information. Initially, we note the submitted information consists of a completed investigation report and is subject to section 552.022 of the Government Code, which states in relevant part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.] Gov't Code § 552.022(a)(1). Pursuant to section 552.022(a)(1) of the Government Code, a completed report is expressly public unless it either is excepted under section 552.108 of the Government Code or is expressly confidential under other law. Although you claim this information is excepted from disclosure under section 552.107(1) of the Government Code, we note that this section is a discretionary exception under the Act that does not constitute "other law" for purposes of section 552.022. See Open Records Decision Nos. 676 at 10-11 (2002) (attorney-client privilege under section 552.107(1) may be waived), 665 at 2 n.5 (2000) (discretionary exceptions generally). Accordingly, the district may not withhold the information at issue under section 552.107(1) of the Government Code. However, the Texas Supreme Court has held that the Texas Rules of Evidence are "other law" that makes information expressly confidential for the purposes of section 552.022. See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001); see also ORD 676. Accordingly, we will consider your attorney-client privilege argument under Texas Rule of Evidence 503. Texas Rule of Evidence 503 encompasses the attorney-client privilege and provides in part: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer's representative; (C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (E) among lawyers and their representatives representing the same client. Tex. R. Evid. 503(b)(1). A communication is "confidential" if 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). Thus, in order to withhold attorney-client privileged information from disclosure under rule 503, a governmental body must: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the information is privileged and confidential under rule 503, provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-- Houston [14th Dist.] 1993, no writ). You explain that the district hired a private law firm to conduct an investigation of the named individual in order to provide legal advice to the district. You state the resulting investigation report was created in furtherance of the rendition of professional legal services to the district. You also state that this information has remained confidential. Based on your representations and our review of the information at issue, we conclude that the submitted investigation report is confidential under rule 503 of the Texas Rules of Evidence. See Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328 (Tex. App.--Austin 2000, pet. denied) (attorney's entire investigative report was protected by attorney-client privilege where attorney was retained to conduct investigation in her capacity as attorney for purpose of providing legal services and advice). Accordingly, the district may withhold the submitted information under rule 503. 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, Andrea L. Caldwell Assistant Attorney General Open Records Division ALC/eeg Ref: ID# 411833 Enc. Submitted documents c: Requestor (w/o enclosures)
1. Although you raise section 552.101 of the Government Code in conjunction with the attorney-client
privilege under 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), 575 at 2 (1990). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |