 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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July 5, 2011 Mr. R. Brooks Moore Managing Counsel, Governance Office of General Counsel The Texas A&M University System 200 Technology Way, Suite 2079 College Station, Texas 77845-3424 OR2011-09403 Dear Mr. R. Brooks Moore: 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# 422733 (A&M SO-11-040). The Texas A&M University System (the "system") received a request for "electronic communication between or among the [Texas A&M University] Chancellor and members of the Board of Regents" for a specified time period. You claim that some of the requested information is excepted from disclosure under sections 552.101 and 552.107 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. (1) Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information other statutes make confidential, such as section 51.971 of the Education Code, which provides in part: (a) In this section: (1) "Compliance program" means a process to assess and ensure compliance by the officers and employees of an institution of higher education with applicable laws, rules, regulations, and policies, including matters of: (A) ethics and standards of conduct; (B) financial reporting; (C) internal accounting controls; or (D) auditing. . . . (c) The following are confidential: (1) information that directly or indirectly reveals the identity of an individual who made a report to the compliance program office of an institution of higher education, sought guidance from the office, or participated in an investigation conducted under the compliance program; and (2) information that directly or indirectly reveals the identity of an individual as a person who is alleged to have or may have planned, initiated, or participated in activities that are the subject of a report made to the compliance program office of an institution of higher education if, after completing an investigation, the office determines the report to be unsubstantiated or without merit. (d) Subsection (c) does not apply to information related to an individual who consents to disclosure of the information. Educ. Code § 51.971. You state that Exhibit B-2 pertains to "a breach of compliance reported to [a system] compliance program office[,]" and we note the information concerns a complaint to the "EthicsPoint hotline." Thus, we agree the information at issue pertains to the system's compliance program for the purposes of section 51.971. See id. § 51.971(a). You state the information at issue reveals the identity of the person subject to the allegation, which, after an investigation, was found to be without merit. We understand the individual has not consented to release of his identifying information. See id. § 51.971(d). Accordingly, we find the system must withhold the identifying information we have marked under section 552.101 in conjunction with section 51.971(c)(2) of the Education Code. However, you have failed to demonstrate how the remaining information at issue in Exhibit B-2 identifies an individual who is the subject of the allegation for purposes of section 51.971(c)(2). Consequently, you have failed to show the remaining information is confidential under section 51.971(c), and it may not be withheld on that basis. As you raise no further arguments against disclosure, you must release the remaining information at issue in Exhibit B-2. Section 552.107(1) of the Government Code protects information coming within the attorney-client privilege. Gov't Code § 552.107(1). 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. 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) (attorney-client privilege does not apply if attorney acting in a 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 to only communications between or among clients, client representatives, lawyers, and lawyer representatives. 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 to only 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. 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 the information at issue in Exhibit B-1 constitutes communications amongst system attorneys, officers, and executive administrators you have identified that were made for the purpose of providing legal advice and recommendations to the system. You state the communications at issue were intended to be confidential and have remained confidential. Based on your representations and our review, we find the system may withhold the information at issue in Exhibit B-1 under section 552.107(1) of the Government Code. In summary: (1) the system must withhold the information we have marked in Exhibit B-2 under section 552.101 of the Government Code in conjunction with section 51.971(c)(2) of the Education Code; and (2) the system may withhold the information at issue in Exhibit B-1 under section 552.107(1) of the Government Code. The system must release the remaining information at issue. 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, Lindsay E. Hale Assistant Attorney General Open Records Division LEH/em Ref: ID# 422733 Enc. Submitted documents c: Requestor (w/o enclosures) Footnotes1. This letter ruling assumes that the submitted representative sample of information is truly representative of the requested information as a whole. This ruling does not reach, and therefore does not authorize, the withholding of any other requested information to the extent that the other information is substantially different than that submitted to this office. See Gov't Code §§ 552.301(e)(1)(D), .302; Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).
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