June 30, 2011

Mr. Frank Battle

General Counsel

Office of the Lieutenant Governor

The Capitol

Austin, Texas 78711-2068

OR2011-09316

Dear Mr. Battle:

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# 420829.

The Office of the Lieutenant Governor (the "lieutenant governor") received a request for the lieutenant governor's daily calendar from 2005 to 2011, (2) e-mails sent and received by the lieutenant governor or his staff regarding the Emerging Technology Fund (the "ETF") from September 1, 2005 to March 1, 2011, and (3) e-mails between the lieutenant governor or his staff and a specified list of individuals and e-mail addresses regarding any subject during the same dates, excluding e-mails between staff members that do not relate to the ETF. ⁽¹⁾ You state some information has been released to the requestor. You believe release of some of the submitted information may implicate the proprietary interests of third parties. Accordingly, you state you notified these third parties of the request and their right to submit arguments to this office as to why the requested information should not be released. See Gov't Code § 552.305(d) (person whose proprietary interests are implicated has the right to submit arguments to this office as to whether the person's information should be released); 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 one third party. We have also received comments from the Office of the Governor (the "governor"). See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released). You claim the public availability of portions of the submitted information is governed by sections 306.003 and 306.004 of the Government Code. You claim the remaining requested information is excepted from disclosure under sections 552.101, 552.106, 552.107, and 552.111 of the Government Code. We have considered the submitted arguments and reviewed the submitted information, a portion of which is a representative sample. ⁽²⁾

We first address your argument that Exhibits S and T are not governed by the Act. Section 306.003 of the Government Code provides as follows:

(a) Records of a member of the legislature or the lieutenant governor that are composed exclusively of memoranda of communications with residents of this state and of personal information concerning the person communicating with the member or lieutenant governor are confidential. However, the member or the lieutenant governor may disclose all or a part of a record to which this subsection applies, and that disclosure does not violate the law of this state.

(b) The method used to store or maintain a record covered by Subsection (a) does not affect the confidentiality of the record.

Id. § 306.003. The confidentiality provision in section 306.003(a) applies to the records of a member of the legislature or of the lieutenant governor of two kinds of information: (1) records of memoranda of communications with Texas residents and (2) records of personal information about the person communicating with the legislator or lieutenant governor. Id. Thus, "personal information" about a person communicating with a legislator or the lieutenant governor is within section 306.003(a) even if it is not recorded in a memorandum prepared by the legislator or lieutenant governor. Id. Although section 306.003(a) deems confidential the records that are subject to the provision, it gives a member of the legislature the discretion to disclose all or part of such record. See id. § 306.003(a).

While section 306.003 applies to records consisting of memoranda of communications and records of a correspondent's personal information, section 306.004 refers to the communications themselves and provides as follows:

(a) To ensure the right of the citizens of this state to petition state government, as guaranteed by Article I, Section 27, of the Texas Constitution, by protecting the confidentiality of communications of citizens with a member of the legislature or the lieutenant governor, the public disclosure of all or part of a written or otherwise recorded communication from a citizen of this state received by a member or the lieutenant governor in his official capacity is prohibited unless:

(1) the citizen expressly or by clear implication authorizes the disclosure;

(2) the communication is of a type that is expressly authorized by statute to be disclosed; or

(3) the official determines that the disclosure does not constitute an unwarranted invasion of personal privacy of the communicator or another person.

(b) This section does not apply to a communication to a member of the legislature or the lieutenant governor from a public official or public employee acting in an official capacity.

(c) A member or the lieutenant governor may elect to disclose all or part of a communication to which this section applies, and that disclosure does not violate the law of this state.

Id. § 306.004. For purposes of section 306.004, a "communication" includes "conversation, correspondence, and electronic communication." Id. § 306.001. The communication is not subject to public disclosure unless one of the three conditions stated in section 306.004(a) applies. See id. § 306.004(a)(1)-(3). As is also true of records subject to section 306.003(a), a legislator has the discretion to disclose all or part of records subject to section 306.004(a).

In Open Records Decision No. 648 (1996), this office addressed the applicability of sections 306.003 and 306.004 to information held by a state representative. In construing these provisions, we stated:

As we have seen, chapter 306 contains provisions for the disclosure of the information it covers. Thus, the chapter is not merely a confidentiality statute, but a statute that sets the parameters for public access to the information to which it applies. Accordingly, we believe chapter 306, rather than the [Act], governs the release of information within section 306.003(a) or section 306.004. See Open Records Decision No. 598 (1991) (statutes governing specific subset of information prevail over general applicability of [Act]). Thus, we need not consider whether information covered by chapter 306 is excepted from public disclosure pursuant to an [Act] exception . . . . Information falling within the scope of chapter 306 of the Government Code may be released only as that chapter provides and does not fall within the scope of the [Act], chapter 552 of the Government Code. A member of the legislature or the lieutenant governor may elect to disclose all or part of the information within sections 306.003(a) and 306.004 of the Government Code, but is not required to do so.

ORD 648 at 3, 7. We further found the statute's legislative history affirmed this construction of chapter 306 of the Government Code. In a footnote, we explained the House Study Group report of the legislation that enacted the statutory predecessor to chapter 306 demonstrated "that the effect of the statute is to give legislators the discretion to release their communications with state residents and to exempt the legislature in this regard from the ordinary disclosural requirements set forth in the [Act]." Id. at 3-4 n.3. Therefore, the release of information subject to section 306.003(a) or 306.004(a) is governed by chapter 306 of the Government Code, not the Act, and it is within the discretion of a legislator to either withhold or release such information.

You state Exhibits S and T contain information governed by section 306.003(a) or section 306.004(c). Therefore, to the extent the lieutenant governor determines the information in question is subject to section 306.003(a) or 306.004(a), it is within his discretion to either withhold this information or release it to the requestor. To the extent the lieutenant governor determines Exhibits S and T are not subject to section 306.003(a) or 306.004(a), such information must be released, as you have raised no further arguments against its disclosure.

We now address the arguments against disclosure of the remaining requested information subject to the Act. The governor raises section 552.104 of the Government Code for the company synopses found in Exhibits D and E. The governor explains the governor transferred these documents to the lieutenant governor to allow for proper review of the ETF applicants. A state agency may transfer information to another state agency without waiving exceptions to disclosure. See Attorney General Opinions H-717 at 1 (1976), H-242 at 4 (1974); Open Records Decision Nos. 667 at 3-4 (2000), 661 at 3 (1999). Section 552.104 excepts from required public disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104. This exception protects a governmental body's interests in connection with competitive bidding and in certain other competitive situations. See Open Records Decision No. 593 (1991) (construing statutory predecessor). This office has held a governmental body may seek protection as a competitor in the marketplace under section 552.104 and avail itself of the "competitive advantage" aspect of this exception if it can satisfy two criteria. See id. First, the governmental body must demonstrate it has specific marketplace interests. See id. at 3. Second, the governmental body must demonstrate a specific threat of actual or potential harm to its interests in a particular competitive situation. See id. at 5. Thus, the question of whether the release of particular information will harm a governmental body's legitimate interests as a competitor in a marketplace depends on the sufficiency of the governmental body's demonstration of the prospect of specific harm to its marketplace interests in a particular competitive situation. See id. at 10. A general allegation of a remote possibility of harm is not sufficient. See Open Records Decision No. 514 at 2 (1988).

The governor asserts the State of Texas (the "state") has a competitive interest in "attract[ing] and advanc[ing] high-tech researchers and employers" to the state to "advance the [state's] technology industry." The governor informs us the state "is competing against other states attempting to expand or recruit businesses to their state." The governor states the company synopses in Exhibits D and E contain information regarding the companies' finances and the incentives being offered by the state, and argues release of this information would be a competitive disadvantage for the state because this information could be used by other states to offer better terms and by other companies to demand terms being offered to competing businesses. Further, the governor explains contract negotiations with the companies were pending when the request for information was received. Based on the governor's representations and our review of the information at issue, we find the governor has sufficiently demonstrated that the state has specific marketplace interests in this instance and that release of the company synopses in Exhibits D and E, which we have marked, would harm the state in a specific competitive situation. See ORD 593. Thus, we conclude the lieutenant governor may withhold the information we have marked in Exhibits D and E under section 552.104 of the Government Code. ⁽³⁾

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. Section 552.101 encompasses information made confidential by other statutes, such as section 490.057 of the Government Code, which addresses the confidentiality of certain information pertaining to the ETF. You raise this section for portions of Exhibit F and the remaining information in Exhibits D and E. Section 490.057 provides:

Information collected by the governor's office, the [Texas Emerging Technology Advisory C]ommittee, or the committee's advisory panels concerning the identity, background, finance, marketing plans, trade secrets, or other commercially or academically sensitive information of an individual or entity being considered for an award from the fund is confidential unless the individual or entity consents to disclosure of the information.

Id. § 490.057. You state the marked information in Exhibits D-F concerns the identity, background, finance, marketing plans, trade secrets, or other commercially or academically sensitive information of companies applying for awards from the ETF. The governor informs us these companies' applications were still being considered on the date of the request. You inform us only two companies have consented to disclosure. Based upon the governor's and your representations and our review, we find the information you have marked under section 490.057 in Exhibits D, E, and F concerns the identity, background, finance, marketing plans, trade secrets, or other commercially or academically sensitive information of entities being considered for an award from the fund. Therefore, with the exception of information concerning companies that have consented to disclosure, which we have marked for release, this information is confidential under section 490.057 of the Government Code and must be withheld under section 552.101 of the Government Code. ⁽⁴⁾

Section 552.101 of the Government Code also encompasses section 323.018 of the Government Code, which relates to interactions between the Texas Legislative Council (the "council") and certain government officials. Section 323.018 provides "[r]ecords relating to requests of council staff for the drafting of proposed legislation or for assistance, information, advice, or opinion are not public information." Id. § 323.018. You inform us Exhibits B and C consist of e-mails relating to requests by the lieutenant governor to the council for the drafting of proposed legislation. Based on your representations and our review of the records at issue, we find Exhibits B and C are confidential under section 323.018 and must be withheld under section 552.101. ⁽⁵⁾

Section 552.111 of the Government Code excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." Gov't Code § 552.111. this exception 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. 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 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 of section 552.111). 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.

You state the remaining information you have marked in Exhibits D-R under section 552.111 consists of (1) communications containing advice, opinion, and recommendations regarding policy issues and (2) drafts of speeches intended for public release in their final form. You have demonstrated that all parties to the communications at issue are members of the lieutenant governor's or governor's staffs, or third-parties with whom a privity of interest or common deliberative process is shared. Upon review, we find most of the information you have marked is advice, opinions, or recommendations that pertain to the lieutenant governor's policymaking processes. However, the remaining information you have marked consists of factual information. We find you have not demonstrated this information, which we have marked, constitutes advice, recommendations, or opinions reflecting the lieutenant governor's policymaking processes for purposes of section 552.111, and it may not be withheld on that basis. The lieutenant governor may withhold the remaining information you have marked under section 552.111. ⁽⁶⁾

You assert the remaining information you have marked in Exhibit J is excepted by section 552.106 of the Government Code. This section excepts from disclosure "[a] draft or working paper involved in the preparation of proposed legislation." Gov't Code § 552.106(a). Section 552.106 resembles section 552.111 in that both exceptions protect advice, opinion, and recommendation on policy matters, in order to encourage frank discussion during the policymaking process. See Open Records Decision No. 460 at 3 (1987). However, section 552.106 applies specifically to the legislative process and thus is narrower than section 552.111. Id. The purpose of section 552.106(a) is to encourage frank discussion on policy matters between the subordinates or advisors of a legislative body and the members of the legislative body; therefore, this section is applicable only to the policy judgments, recommendations, and proposals of persons who are involved in the preparation of proposed legislation and who have an official responsibility to provide such information to members of the legislative body. See Open Records Decision No. 460 at 1-2 (1987), 367 (1983) (statutory predecessor applied to recommendations of executive committee of State Board of Public Accountancy for possible amendments to Public Accountancy Act); see also Open Records Decision No. 429 at 5 (1985) (statutory predecessor to section 552.106 not applicable to information relating to governmental entity's efforts to persuade other governmental entities to enact particular ordinances). Section 552.106 only protects policy judgments, advice, opinions, and recommendations involved in the preparation or evaluation of proposed legislation; it does not except purely factual information from public disclosure. See ORD 460 at 2.

You assert the remaining information you have marked in Exhibit J is part of a working paper excepted by section 552.106. You state the information reflects advice regarding policy issues involved in preparation of proposed legislation. However, we find the remaining information you have marked under section 552.106 in Exhibit J consists of factual information. You have not demonstrated how this information constitutes recommendations, opinions, or advice for purposes of section 552.106. Therefore, no portion of the remaining information may be withheld on that basis.

In summary, to the extent the lieutenant governor determines the information in Exhibits S and T is subject to section 306.003(a) or 306.004(a) of the Government Code, it is within his discretion to either withhold this information or release it to the requestor. The lieutenant governor may withhold the company synopses we have marked in Exhibits D and E under section 552.104 of the Government Code. Additionally, the lieutenant governor must withhold (1) with the exception of information we have marked concerning entities that have consented to disclosure, the information you have marked in Exhibits D-F under section 552.101 of the Government Code in conjunction with section 490.057 of the Government Code and (2) Exhibits B and C under section 552.101 of the Government Code in conjunction with section 323.018 of the Government Code. With the exception of information we have marked for release, the lieutenant governor may withhold the information you have marked under section 552.111. The remaining information must be released to the requestor. ⁽⁷⁾

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/bs

Ref: ID # 420829

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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