 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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May 23, 2012 Mr. Larry A. Baskind Baskind & Hosford, P.C. 300 East Main, Suite 908 El Paso, Texas 79901-1379 OR2012-07824 Dear Mr. Baskind: 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# 454473. The Socorro Independent School District (the "district"), which you represent, received a request for all e-mails to and from three named administrators during a specified time period and five categories of information related to the requestor. You claim the submitted information is excepted from disclosure under section 552.107 of the Government Code. We have considered the exception you claim and reviewed the submitted information. Initially, we note you only submitted information responsive to item three of the request. You have not submitted information responsive to the remaining items of the request. To the extent information responsive to the other items existed and was maintained by the district on the date the district received the request, we assume you have released it. If you have not released such information, you must do so at this time. See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible). Next, we note the submitted information pertains to a completed investigation subject to section 552.022(a)(1) of the Government Code. Section 552.022 provides in part: (a) [T]he following categories of information are public information and not excepted from required disclosure unless made confidential under this chapter or other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.] Gov't Code § 552.022(a)(1). The district may only withhold this document if it is excepted from disclosure under section 552.108 of the Government Code or is expressly made confidential under the Act or other law. The Texas Supreme Court has held that the Texas Rules of Evidence are "other law" within the meaning of section 552.022. In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). Accordingly, we will consider your assertion of the attorney-client privilege under Texas Rule of Evidence 503 for the submitted document. Texas Rule of Evidence 503 enacts the attorney-client privilege. Rule 503(b)(1) provides as follows: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer's representative; (C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (E) among lawyers and their representatives representing the same client. Tex. R. Evid. 503(b)(1). A communication is "confidential" if it is 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). Thus, in order to withhold attorney-client privileged information from disclosure under rule 503, a governmental body must: (1) show the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show the communication is confidential by explaining it was not intended to be disclosed to third persons and it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the information is privileged and confidential under rule 503, provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). See Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.--Houston [14th Dist.] 1993, no writ). You assert the submitted document and its attachments are a confidential communication by an attorney for the district to the district's Chief Human Resources Officer. You state the document contains the legal analysis of the attorney and was not intended to be disclosed to third parties. Based on these representations and our review of the information at issue, we conclude the district may withhold the submitted document under Texas Rule of Evidence 503. 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, Tamara Wilcox Assistant Attorney General Open Records Division TW/bs Ref: ID# 454473 Enc. Submitted documents c: Requestor (w/o enclosures)
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