March 20, 2012

Mr. Bob Davis

Assistant General Counsel

Office of the Governor

P.O. Box 12428

Austin, Texas 78711

OR2012-04093

Dear Mr. Davis:

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# 449464 (OOG ID# 711-11).

The Office of the Governor (the "governor's office") received a request for all correspondence regarding voter photo identification generated or received by any employee of the governor's office, including phone logs, between January 1, 2010 and December 19, 2011. ⁽¹⁾ You state you have released some of the requested information. You also state the governor's office has redacted personal information of employees subject to section 552.117 of the Government Code pursuant to section 552.024 of the Government Code and personal e-mail addresses under section 552.137 of the Government Code pursuant to Open Records Decision No. 684 (2009). ⁽²⁾ You claim the remaining responsive information is excepted from disclosure under sections 552.103, 552.107, and 552.111 of the Government Code. Additionally, you state the requested information may implicate the interests of third parties. Accordingly, you inform us you notified the Office of the Attorney General (the "OAG"), the Texas Department of Transportation, and the Texas Secretary of State of the request and of their right to submit comments to this office as to why the requested information should not be released to the requestor. See Gov't Code § 552.304 (providing that any person may submit comments stating why information should or should not be released). We have received comments from the OAG. We have considered the submitted arguments and reviewed the submitted representative sample of information. ⁽³⁾

Section 552.103 of the Government Code provides in part:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

. . .

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

Id. § 552.103(a), (c). A governmental body that claims an exception to disclosure under section 552.103 has the burden of providing relevant facts and documentation sufficient to establish the applicability of this exception to the information at issue. To meet this burden, the governmental body must demonstrate that (1) litigation was pending or reasonably anticipated on the date of its receipt of the request for information and (2) the information at issue is related to the pending or anticipated litigation. See Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, orig. proceeding); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. See Open Records Decision No. 551 at 4 (1990).

To establish litigation is reasonably anticipated, a governmental body must provide this office with "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). When the governmental body is the prospective plaintiff in litigation, the evidence of anticipated litigation must at least reflect that litigation involving a specific matter is "realistically contemplated." See Open Records Decision No. 518 at 5 (1989); see also Attorney General Opinion MW-575 (1982) (finding investigatory file may be withheld if governmental body's attorney determines that it should be withheld pursuant to Gov't Code § 552.103 and that litigation is "reasonably likely to result"). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See ORD 452 at 4.

You claim the information in Exhibits B and C is excepted from disclosure under section 552.103 because litigation relating to the subject of the present request was reasonably anticipated at the time the governor's office received the request. We note the OAG also raises 552.103 for the information at issue on this basis. You state prior to the date of the present request, the governor's office was working with the OAG to obtain precelearance from the United States Department of Justice (the "DOJ") in order to implement Senate Bill 14, a law concerning voter identification. You explain preclearance from the DOJ or the federal courts is required before Texas may implement Senate Bill 14. You inform us that at the time the governor's office received the instant request for information, the preclearance submission was still pending with the DOJ and, therefore, the governor's office and the OAG were preparing to file suit in a U.S. District Court to compel a decision regarding Senate Bill 14's status. Based on the submitted arguments and our review of the information at issue, we find the governor's office and the OAG reasonably anticipated litigation on the date the governor's office received the instant request. Further, you explain that the information at issue is related to the anticipated litigation because it pertains to the governor's office's position with respect to voter identification and the governor's office's preclearance submission to the DOJ. Therefore, we find the information in Exhibits B and C is related to the anticipated litigation for purposes of section 552.103 of the Government Code. Accordingly, the governor's office may withhold the information in Exhibits B and C under section 552.103 of the Government Code. ⁽⁴⁾

In reaching this conclusion, we assume that the opposing party in the pending litigation has not seen or had access to any of the information at issue. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties to obtain information relating to litigation through discovery procedures. See ORD 551 at 4-5. If the opposing party has seen or had access to information relating to pending litigation, through discovery or otherwise, then there is no interest in withholding such information from public disclosure under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). We note that the applicability of section 552.103 ends once the related litigation concludes. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

Next, you raise section 552.111 of the Government Code for the information you have marked in Exhibit D. Section 552.111 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 that 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 that 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.

You state the information you have marked in Exhibit D consists of draft statements and draft policy documents. You state this marked information contains advice, opinions, and recommendations on policy matters shared only amongst the staff of the governor's office. Further, you state the final form of these draft statements and documents were released to the public. Based on your representations and our review of the information, we conclude the governor's office may withhold the information you have marked in Exhibit D under section 552.111 of the Government Code.

In summary, the governor's office may withhold Exhibits B and C under section 552.103 and the information you have marked in Exhibit D under section 552.111. The remaining information must be released to the requestor.

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,

Kathryn R. Mattingly

Assistant Attorney General

Open Records Division

KRM/dls

Ref: ID# 449464

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. Reg Hargrove

Assistant Attorney General

Public Information Coordinator

Office of the Texas Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

(w/o enclosures)

Mr. Bob Jackson

General Counsel

125 East 11^th Street

Austin, Texas 78701-2483

(w/o enclosures)

Ms. Lorena Wassdorf

Acting Counsel

Office of the Texas Secretary of State

P.O. Box 12068

Austin, Texas 78711

(w/o enclosures)

Mr. Keith Ingram

Elections Division

Office of the Texas Secretary of State

P.O. Box 12068

Austin, Texas 78711

(w/o enclosures)

Footnotes

1. We note the governor's office sought and received clarification from the requestor regarding the request. See Gov't Code § 552.222(b) (stating if information requested is unclear to governmental body or if large amount of information has been requested, governmental body may ask requestor to clarify or narrow request, but may not inquire into purpose for which information will be used); see also City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010) (holding that when a governmental entity, acting in good faith, requests clarification or narrowing of an unclear or over-broad request for public information, the ten-day period to request an attorney general ruling is measured from the date the request is clarified or narrowed).

2. Section 552.024(c)(2) of the Government Code authorizes a governmental body to redact information protected by section 552.117(a)(1) of the Government Code without the necessity of requesting a decision under the Act if the current or former employee or official to whom the information pertains timely chooses not to allow public access to the information. See Gov't Code § 552.024(c)(2). Open Records Decision No. 684 is a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including personal e-mail addresses under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

3. 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.

4. As our ruling is dispositive, we need not address your remaining arguments against disclosure for this information.

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