October 25, 2011

Ms. Holly C. Lytle

Assistant City Attorney

El Paso County

500 East San Antonio, Room 503

El Paso, Texas 79901

OR2011-15643

Dear Ms. Lytle:

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# 434204 (OR-11-347).

The El Paso County District Attorney's Office (the "district attorney") received a request for ten categories of information relating to the district attorney's plea bargaining policies and a defendant's citizenship status over the past five years. You state you will release some information to the requestor. You also state you do not have any information responsive to a portion of the request. ⁽¹⁾ You claim the submitted information is excepted from disclosure under sections 552.108 and 552.111 of the Government Code and privileged under Texas Rule of Civil Procedure 192.5 and article 39.14 of the Texas Code of Criminal Procedure. ⁽²⁾ We have considered your arguments and reviewed the submitted information.

Section 552.108 of the Government Code provides in part:

(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from [required public disclosure] if:

. . .

(3) the internal record or notation:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

(B) reflects the mental impressions or legal reasoning of an attorney representing the state.

Gov't Code § 552.108(b)(3). A governmental body claiming an exception to disclosure under section 552.108 must reasonably explain how and why this exception is applicable to the information the governmental body seeks to withhold. See id. §§ 552.108, .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). You contend the submitted information constitutes internal records prepared by supervisory attorneys in the district attorney's office. You further assert this information reflects the mental impressions and legal reasoning of the attorneys and discusses trial preparation and plea bargaining strategies. Based on your representations and our review, we find the submitted information reflects the mental processes or legal reasoning of attorneys representing the state. We therefore conclude the district attorney may withhold the submitted information under section 552.108(b)(3) of the Government Code. As our ruling is dispositive, we do not address your remaining arguments against disclosure.

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,

Kirsten Brew

Assistant Attorney General

Open Records Division

KB/em

Ref: ID# 434204

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note the Act does not require a governmental body to disclose information that did not exist at the time the request was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio1978, writ dism'd); Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 2-3 (1986), 342 at 3 (1982), 87 (1975); see also Open Records Decision Nos. 572 at 1 (1990), 555 at 1-2 (1990), 416 at 5 (1984).

2. Although you also raise section 552.101 of the Government Code, this office has concluded section 552.101 does not encompass discovery privileges. See Open Records Decision Nos. 676 at 1-2 (2002), 575 at 2 (1990).

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