November 16, 2012

Ms. Ashley R. Allen

Staff Attorney

Administrative Law Section

Texas General Land Office

P.O. Box 12873

Austin, Texas 78711-2873

OR2012-18541

Dear Ms. Allen:

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# 471229.

The Texas General Land Office (the "GLO") received a request for all documents, files, and communications regarding a specified case and the GLO's legal services contract with a named law firm. You state the GLO will release some information to the requestor. You claim the submitted information is excepted from disclosure under section 552.107, as well as privileged under rule 503 of the Texas Rules of Evidence. ⁽¹⁾ We have considered the exception you claim and reviewed the submitted information.

Initially, we note, and you acknowledge, portions of the submitted information are subject to section 552.022(a) of the Government Code, which 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:

(3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body; [and]

. . .

(16) information that is in a bill for attorney's fees and that is not privileged under the attorney-client privilege[.]

Gov't Code § 552.022(a)(3), (16). In this instance, the submitted information includes information in a contract relating to the expenditure of public funds by the GLO and information in attorney fee bills. Thus, the GLO must release this information pursuant to subsections 552.022(a)(3) and 552.022(a)(16) unless the information is confidential under the Act or other law. Id. Although you raise section 552.107 of the Government Code for this information, section 552.107 is discretionary in nature and does not make information confidential under the Act. See Act of May 30, 2011, 82nd Leg., R.S., ch. 1229, §§ 3-21, 23-26, 28-37, 2011 Tex. Gen. Laws 3270, 3272-3275 (providing for "confidentiality" of information under specified exceptions); see also Open Records Decision Nos. 676 at 10-11 (2002) (attorney-client privilege under Gov't Code § 552.107(1) may be waived), 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions). Therefore, the GLO may not withhold the information subject to section 552.022 under this section. However, the Texas Supreme Court has held the Texas Rules of Evidence are "other law" that makes information expressly confidential for purposes of section 552.022. See In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). We will therefore consider your assertion of the attorney-client privilege under Texas Rule of Evidence 503 for the information subject to section 552.022, as well as your argument under section 552.107 for the information not subject to section 552.022.

Texas Rule of Evidence 503(b)(1) provides:

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 claim the submitted contract and fee bills are confidential in their entirety. However, section 552.022(a)(16) of the Government Code provides that information "that is in a bill for attorney's fees" is not excepted from required disclosure unless it is confidential under "other law" or privileged under the attorney-client privilege. See Gov't Code § 552.022(a)(16) (emphasis added). This provision, by its express language, does not permit the entirety of an attorney fee bill to be withheld. See Open Records Decision Nos. 676 (attorney fee bill cannot be withheld in entirety on basis it contains or is attorney-client communication pursuant to language in section 552.022(a)(16)), 589 (1991) (information in attorney fee bill excepted only to extent information reveals client confidences or attorney's legal advice). Consequently, the submitted fee bills may not be withheld in their entirety.

The GLO states the submitted contract and fee bills constitute communications between representatives of and attorneys for the GLO. You state the communications at issue were made for the purpose of the rendition of legal services to the GLO. You state the communications at issue have not been, and were not intended to be, disclosed to third parties. Based on your representations and our review, we conclude the information we have marked may be withheld under rule 503. However, the remaining information at issue does not reveal the content of a communication or is a communication with a party you have not identified as privileged. Thus, we find you have failed to demonstrate any of the remaining information at issue documents privileged attorney-client communications. Accordingly, the remaining information at issue is not privileged under rule 503 and may not be withheld on this basis.

You claim the information not subject to section 552.022 is subject to section 552.107 of the Government Code, which protects information that comes within the attorney-client privilege. The elements of the privilege under section 552.107(1) are the same as those discussed for rule 503. 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 ORD 676 at 6-7. 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 not subject to section 552.022 consists of confidential communications between representatives of and attorneys for the GLO. You state these communications were made for the purpose of facilitating the rendition of professional legal services to the GLO. You state the communications at issue have not been, and were not intended to be, disclosed to third parties. Based on these representations and our review, we agree section 552.107(1) is applicable to the information at issue, and the GLO may withhold the information we have marked under section 552.107(1) of the Government Code.

In summary, the GLO may withhold the information we have marked under Texas Rule of Evidence 503 and the information we have marked under section 552.107(1) of the Government Code. The GLO must release the remaining information.

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,

Jennifer Burnett

Assistant Attorney General

Open Records Division

JB/tch

Ref: ID# 471229

Enc. Submitted documents

c: Requestor

(w/o enclosures)

c: Mr. Ronald B. Walker

Walker, Keeling & Carroll, L.L.P.

210 East Constitution

Victoria, Texas 77902-0108

(w/o enclosures)

Mr. Bruce Bennet

Cardwell, Hart & Bennett, L.L.P.

807 Brazos, Suite 1001

Austin, Texas 78701-2553

(w/o enclosures)

Mr. Jimmy Screen

Shaw Environmental & Infrastructure, Inc.

805 Las Cimas Parkway, Suite 300

Austin, Texas 78746

(w/o enclosures)

Footnotes

1. Although you also raise section 552.101 of the Government Code in conjunction with Texas Rule of Evidence 503, 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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