 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 8, 2011 Mr. David D. Menchaca Assistant General Counsel Open Records Section Comptroller of Public Accounts P.O. Box 13528 Austin, Texas 78711 OR2011-11397 Dear Mr. Menchaca: 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# 426462 (Comptroller ID# 7267810024). The Comptroller of Public Accounts (the "comptroller") received a request for sixteen categories of information pertaining to the requestor's client, a specified letter and assessment, whether certain actions constitute "engaging in business in or substantial nexus with Texas," a specified file, and information related to the adoption of a specified provision of the Tax Code. (1) You state the comptroller is withholding certain information under section 552.116 of the Government Code pursuant to previous determinations issued to the comptroller in Open Records Letter Nos. 2007-10491 (2007) and 2004-3926 (2004). See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure). You state you will release some of the requested information. You claim the submitted information is excepted from disclosure under sections 552.101, 552.107, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. (2) 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 made confidential by other statutes. Section 111.006(a)(2) of the Tax Code provides information "secured, derived, or obtained by the comptroller or the attorney general during the course of an examination of the taxpayer's books, records, papers, officers, or employees, including an examination of the business affairs, operations, source of income, profits, losses, or expenditures of the taxpayer" is confidential. Tax Code § 111.006(a)(2). The supreme court considered the applicability of section 111.006 to several categories of information in A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995). In doing so, the court not only considered if the information was derived from the taxpayer's records, but also whether the information reveals anything about the taxpayer's business affairs, operations, financial condition, profits, or losses. Id. at 676, 680. The court concluded the starting and ending dates of an audit are not confidential under section 111.006 because although they may indicate the seriousness of an audit, they "reveal[] nothing about a taxpayer's business affairs, operations, or profits or losses." Id. at 676. Similarly, the court concluded while the amounts of deficiencies or refunds are derived from the taxpayer's records, the fact of a deficiency or refund "reveals nothing about taxpayers except that they miscalculated their tax." Id. at 680; see id. at 680 n. 6. Thus, the fact of a deficiency or refund is not confidential under section 111.006. You argue some of the submitted information in the submitted Proposed Comptroller's Decision is made confidential by section 111.006 of the Tax Code. While you contend you would generally release de-identified versions of comptroller-filed documents, we note in A&T Consultants, the comptroller at that time conceded taxpayer names are public, and the court determined taxpayer identities are not confidential under section 111.006 and ordered them released. Id. at 676. Therefore, the information at issue may not be de-identified on this basis. (3) Based on our review of the information at issue and A&T Consultants, we conclude some of the information at issue is confidential under section 111.006 as it was obtained or derived from a taxpayer's records and reveals the taxpayer's business affairs, operations, financial condition, profits, or losses. Accordingly, the comptroller must withhold the information we have marked pursuant to section 552.101 of the Government Code in conjunction with section 111.006 of the Tax Code. However, you have failed to demonstrate how any of the remaining information at issue constitutes information obtained from or derived from a taxpayer's records and reveals the taxpayer's business affairs, operations, financial condition, profits, or losses for section 111.006 purposes. Accordingly, none of the remaining information may be withheld under section 552.101 of the Government Code on this 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). 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., 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, orig. proceeding). 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 state some of the remaining information consists of communications involving the comptroller's attorneys and staff in their roles as clients. You state these communications were made in furtherance of the rendition of professional legal services to the comptroller. You state these communications were confidential, and you state the comptroller has not waived the confidentiality of the information at issue. Based on your representations and our review, we find you have demonstrated the applicability of the attorney-client privilege to the information you have marked. Accordingly, the comptroller may withhold the information you have marked under section 552.107 of the Government Code. (4) Section 552.111 of the Government Code 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. 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. 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 ORD 561. You state the remaining information consists of internal communications and draft documents pertaining to policymaking matters of the comptroller. You explain the policymaking matters at issue pertain to tax assessment, tax collection, and enforcement of tax laws, which are core functions of the comptroller. Based on your representations, we find the comptroller has demonstrated some of the information at issue consists of advice, opinions, and recommendations pertaining to the policymaking functions of the comptroller. This information, which we have marked, may be withheld under the deliberative process privilege of section 552.111 of the Government Code. We further find you have demonstrated portions of the remaining information at issue, which we have marked, consist of draft documentation pertaining to the policymaking functions of the comptroller. However, you do not explain whether the marked draft documents will be released to the public in their final form. Accordingly, to the extent the marked draft documents will be released to the public in their final form, the comptroller may withhold this information under section 552.111 of the Government Code. Conversely, to the extent the comptroller will not release the marked draft documents to the public in their final form, the information may not be withheld in its entirety under section 552.111 of the Government Code. In that instance, we have marked portions of the draft documents that consist of advice, opinion, or recommendation regarding policy matters and that may be withheld under section 552.111 of the Government Code. Upon review, however, we find the remaining information at issue is general administrative information or is purely factual in nature. Thus, we find you have failed to demonstrate the remaining information at issue consists of advice, opinions, and recommendations pertaining to the policymaking functions of the comptroller, and the remaining information may not be withheld under section 552.111. In summary, the comptroller must withhold the information we have marked pursuant to section 552.101 of the Government Code in conjunction with section 111.006 of the Tax Code. The comptroller may withhold the information you have marked under section 552.107 of the Government Code and the information we have marked under section 552.111 of the Government Code. To the extent the marked draft documents will be released to the public in their final form, the comptroller may withhold this information under section 552.111 of the Government Code. To the extent the marked draft documents will not be released to the public in their final form, the comptroller may withhold the portions of the draft documents we have marked under section 552.111 of the Government Code. 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/agn Ref: ID# 426462 Enc. Submitted documents c: Requestor (w/o enclosures)
1. You state the comptroller subsequently sought clarification of the information requested, in response
to which the requestor narrowed the request. See Gov't Code § 552.222 (providing if request for information
is unclear, governmental body may ask requestor to clarify request).
2. We assume the "representative sample" of records submitted to this office is truly representative of
the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records
letter does not reach, and therefore does not authorize the withholding of, any other requested records to the
extent those records contain substantially different types of information than that submitted to this office.
3. Although this office refuted the comptroller's de-identification argument and articulated the standard
for section 111.006 as interpreted by A&T Consultants in Open Records Letter No. 2004-7085 (2004), the
comptroller continues to rely on and cite to decisions issued prior to Open Records Letter No. 2004-7085.
4. As our ruling is dispositive with respect to the information at issue, we need not address your
remaining argument against its disclosure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |