November 29, 2012

Mr. George E. Hyde

Counsel for the City of El Paso

Denton, Navarro, Rocha & Bernal

2500 West William Cannon, Suite 609

Austin, Texas 78745

OR2012-19216

Dear Mr. Hyde:

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# 472215.

The City of El Paso (the "city"), which you represent, received a request for (1) all correspondence, whether conducted on personal or public e-mail, between the mayor, council, council representatives, or the city manager regarding public business of the city, (2) all correspondence regarding public business of the city sent from or received by seven named individuals or entities; (3) all certifications of course completions or documents reflecting training of the mayor, council, or city manager as required by the Open Meetings Act; and (4) records of any meeting attended with any council representatives or the mayor during a specified time period in which there was a discussion of renovation of City Hall or the replacement of City Hall with a sports stadium. ⁽¹⁾ The city received a subsequent request from the same requestor for any information supplied to the city or its representatives in response to the initial open records request. You state you have made some information available to the requestor. You claim the information submitted as responsive to the first request is either not subject to the Act or is excepted from disclosure under sections 552.105, 552.107, 552.109, and 552.137 of the Government Code. You also assert that a portion of the submitted information was not subject to the Act until it was received by the city in response to the first request, and you assert portions of this information are excepted under sections 552.102, 552.104, 552.111, and 552.117 of the Government Code. We have considered the arguments you claim and reviewed the submitted representative sample of information. ⁽²⁾

You state the information submitted as Exhibit F1 in response to the first request and as Exhibit D in response to the second request, hereinafter referred to as Exhibit F1, consists of e-mails that were originally located in the personal e-mail accounts of the mayor, council, and city manager. You assert this information was not responsive to the first request because it was in the possession of these individuals and not the city at the time of the first request. You further inform us the individuals who possessed the information at issue voluntarily provided the e-mails to the city in response to the first request, so that at the time of the second request, the information at issue was in the possession of the city. The Act is applicable only to "public information." See Gov't Code §§ 552.002, .021. Section 552.002(a) defines "public information" as consisting of

information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:

(1) by a governmental body; or

(2) for a governmental body and the governmental body owns the information or has a right of access to it.

Id. § 552.002(a). Thus, virtually all the information in a governmental body's physical possession constitutes public information and is subject to the Act. Id. § 552.002(a)(1); see Open Records Decision Nos. 549 at 4 (1990), 514 at 1-2 (1988). The Act also encompasses information a governmental body does not physically possess, if the information is collected, assembled, or maintained for the governmental body and the governmental body owns the information or has a right of access to it. Gov't Code § 552.002(a)(2); see Open Records Decision No. 462 at 4 (1987). Moreover, section 552.001 of the Act provides it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. See Gov't Code § 552.001(a).

We further note the characterization of information as "public information" under the Act is not dependent on whether the requested records are in the possession of an individual or whether a governmental body has a particular policy or procedure that establishes a governmental body's access to the information. See Open Records Decision No. 635 at 3-4 (1995) (finding information does not fall outside definition of "public information" in Act merely because individual member of governmental body possesses information rather than governmental body as whole); see also Open Records Decision No. 425 (1985) (concluding, among other things, information sent to individual school trustees' homes was public information because it related to official business of governmental body) (overruled on other grounds by Open Records Decision No. 439 (1986)). Furthermore, this office has found that information in a public official's personal e-mail account and home telephone records may be subject to the Act where the public official uses the personal e-mail account and home telephone records to conduct public business. See ORD 635 at 6-12 (appointment calendar owned by a public official or employee is subject to the Act when it is maintained by another public employee and used for public business).

You assert the city did not collect, assemble, or maintain the information at issue pursuant to any law or ordinance nor did it have a right of access to the information, until it was voluntarily provided. However, we note most of the information at issue pertains to the transaction of official city business. We reiterate that information is within the scope of the Act if it relates to the official business of a governmental body and is maintained by a public official or employee of the governmental body. ⁽³⁾ See Gov't Code § 552.002(a). A governmental body may not circumvent the applicability of the Act by conducting official business in a private medium. See ORDs 635 at 12, 425 at 2. Thus, to the extent the e-mails originally located in personal e-mail accounts relate to the official business of the city, they were subject to the Act at the time of the first request.

Upon review, we note a portion of the submitted information, which we have marked, is not responsive to the instant requests because it does not relate to the public business of the city, but rather concerns purely personal exchanges. See ORD 635. (statutory predecessor not applicable to personal information unrelated to official business and created or maintained by state employee involving de minimis use of state resources). Accordingly, we conclude the information we have marked is not subject to the Act and need not be released in response to these requests. However, we will address the exceptions you raise for the remaining information in Exhibit F-1.

Next, we must address the city's obligations under section 552.301 of the Government Code, which prescribes the procedures a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(e), a governmental body must submit to this office within fifteen business days of receiving an open records request (1) written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. See Gov't Code § 552.301(e). You state the city received the first request for information on September 5, 2012 and received clarification of the request on September 10, 2012. This office does not count the date the request was received or holidays as business days for the purpose of calculating a governmental body's deadlines under the Act. The city informs us all city administrative offices are closed on Fridays. In determining a governmental body's deadline for submission, this office only counts those days the entity was open for business. Thus, business days for the city are Monday through Thursday. Accordingly, the city was required to provide the information required by section 552.301(e) by October 4, 2012. However, although you timely provided written comments explaining why sections 552.105, 552.107, 552.109, and 552.137 applied to the submitted information on October 4, 2012, the written comments explaining why sections 552.102, 552.104, 552.111, and 552.117 were applicable to the submitted information were contained in an envelope postmarked November 1, 2012. See id. § 552.308(a)(1) (describing rules for calculating submission dates of documents sent via first class United States mail, common or contract carrier, or interagency mail). Accordingly, we conclude the city failed to comply with the procedural requirements mandated by section 552.301 of the Government Code with respect to sections 552.102, 552.104, 552.111, and 552.117 of the Government Code. Accordingly, the city has waived sections 552.104 and 552.111 of the Government Code. See Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions in general), 663 at 5 (1999) (untimely request for decision resulted in waiver of discretionary exceptions including section 552.111), 592 (1991) (stating that governmental body may waive section 552.104). However, mandatory exceptions to disclosure cannot be waived by a governmental body. See Gov't Code § 552.352; Open Records Decision No. 574 at n.4 (2001) (mandatory exceptions). Because sections 552.102 and 552.117 are mandatory exceptions to disclosure, we will consider the city's arguments under these exceptions, as well as sections 552.105, 552.107, 552.109, and 552.137.

Section 552.102(a) of the Government Code excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code § 552.102(a). The Texas Supreme Court held section 552.102(a) excepts from disclosure the dates of birth of state employees in the payroll database of the Texas Comptroller of Public Accounts. Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 354 S.W.3d 336 (Tex. 2010). Thus, under Texas Comptroller, section 552.102(a) is applicable to the date of birth of an employee of a governmental body in a record maintained by his or her employer in an employment context. We note the marked date of birth pertains to an individual who is not a city employee or official. Accordingly, the information at issue is not excepted under section 552.102(a) of the Government Code and may not be withheld on that basis.

Section 552.105 of the Government Code excepts from disclosure information relating to "appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property." Gov't Code § 552.105(2). Section 552.105 is designed to protect a governmental body's planning and negotiating position with respect to particular transactions. Open Records Decision Nos. 564 at 2 (1990), 357 (1982), 310 (1982). Information that is excepted from disclosure under section 552.105 that pertains to such negotiations may be excepted from disclosure so long as the transaction relating to that information is not complete. See ORD 310. But the protection offered by section 552.105 is not limited solely to transactions not yet finalized. This office has concluded that information about specific parcels of land obtained in advance of other parcels to be acquired for the same project could be withheld where release of the information would harm the governmental body's negotiating position with respect to the remaining parcels. See ORD 564 at 2. A governmental body may withhold information "which, if released, would impair or tend to impair [its] 'planning and negotiating position in regard to particular transactions.'" ORD 357 at 3 (quoting Open Records Decision No. 222 (1979)). The question of whether specific information, if publicly released, would impair a governmental body's planning and negotiating position with regard to particular transactions is a question of fact. Accordingly, this office will accept a governmental body's good-faith determination in this regard, unless the contrary is clearly shown as a matter of law. See ORD 564.

You state the city has made a good-faith determination that the information in Exhibit F3 relates to the appraisal or purchase price of real property the city intends to purchase. You explain release of this information would harm the city's negotiating position with respect to the acquisition of the properties at issue. Based on your representations and our review, we conclude the city may withhold Exhibit F3 under section 552.105 of the Government Code.

Section 552.107(1) of the Government Code protects information that comes within the attorney-client privilege. Gov't Code § 552.107. 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)(A)-(E). 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. 503(b)(1), 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 claim Exhibit F2 is protected by section 552.107(1) of the Government Code. You state Exhibit F2 consists of communications involving city employees, officials, and attorneys and outside counsel for the city. You state the communications were made for the purpose of facilitating the rendition of professional legal services to the city and that these communications have remained confidential. However, we note one of the submitted e-mails, which we have marked, was sent to a non-privileged party. Accordingly, the city may not withhold this e-mail, which we have marked for release, under section 552.107 under the attorney-client privilege. Based on your representations and our review, we find you have demonstrated the applicability of the attorney-client privilege to the remaining portions of Exhibit F2 under section 552.107(1). Thus, the city may generally withhold the remaining portions of Exhibit F2 under section 552.107(1) of the Government Code. We note, however, some of the remaining e-mail strings include e-mails received from or sent to non-privileged parties. Furthermore, if the e-mails received from or sent to non-privileged parties are removed from the e-mail strings and stand alone, they are responsive to the request for information. Therefore, if these non-privileged e-mails, which we have marked, are maintained by the city separate and apart from the otherwise privileged e-mail strings in which they appear, then the city may not withhold these non-privileged e-mails under section 552.107(1) of the Government Code.

You raise section 552.109 of the Government Code for Exhibit F5. Section 552.109 excepts from public disclosure "[p]rivate correspondence or communications of an elected office holder relating to matters the disclosure of which would constitute an invasion of privacy[.]" Gov't Code § 552.109. This office has held the test to be applied to information under section 552.109 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976), for information claimed to be protected under the doctrine of common-law privacy as incorporated by section 552.101 of the Government Code. ⁽⁴⁾

In Industrial Foundation, the Texas Supreme Court held information is protected by common-law privacy if it: (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person; and (2) is not of legitimate concern to the public. 540 S.W.2d at 685. To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. See id. at 681-82. The type of information considered intimate or embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. However, information pertaining to the work conduct and job performance of public employees is subject to a legitimate public interest and, therefore, generally not protected from disclosure under common-law privacy. See Open Records Decision Nos. 562 at 10 (1990) (personnel file information does not involve most intimate aspects of human affairs, but in fact touches on matters of legitimate public concern), 470 at 4 (1987) (job performance does not generally constitute public employee's private affairs), 455 (1987) (public employee's job performance or abilities generally not protected by privacy). Upon review, we find you have failed to demonstrate how any of the information in Exhibit F5 is highly intimate or embarrassing information of no legitimate public interest. Therefore, none of Exhibit F5 may be withheld under section 552.109 of the Government Code.

Section 552.117(a)(1) of the Government Code excepts from disclosure the home address and telephone number, emergency contact information, social security number, and family member information of a current or former employee or official of a governmental body who requests this information be kept confidential under section 552.024 of the Government Code. Gov't Code § 552.117(a)(1). Whether a particular item of information is protected by section 552.117(a)(1) must be determined at the time of the governmental body's receipt of the request for the information. See Open Records Decision No. 530 at 5 (1989). Thus, information may be withheld under section 552.117(a)(1) only on behalf of a current or former employee or official who made a request for confidentiality under section 552.024 prior to the date of the governmental body's receipt of the request for the information. Information may not be withheld under section 552.117(a)(1) on behalf of a current or former employee or official who did not timely request under section 552.024 the information be kept confidential. Therefore, to the extent the individuals whose information we have marked under section 552.117(a)(1) timely requested confidentiality under section 552.024 of the Government Code, the city must withhold this information under section 552.117(a)(1) of the Government Code. Conversely, to the extent the individuals at issue did not timely request confidentiality under section 552.024, the city may not withhold the information we have marked under section 552.117(a)(1).

Section 552.137 of the Government Code excepts from disclosure "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body," unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c). Gov't Code § 552.137(a)-(c). The e-mail addresses you have marked, and the additional e-mail addresses we have marked, are not of a type specifically excluded by section 552.137(c). Therefore, the city must withhold the marked e-mail addresses under section 552.137, unless the owners affirmatively consent to their release. ⁽⁵⁾

In summary, the city may withhold Exhibit F3 under section 552.105 of the Government Code. With the exception of the e-mail we have marked for release, the city may withhold Exhibit F2 under section 552.107 of the Government Code; however, if the non-privileged e-mails we have marked are maintained separate and apart from the otherwise privileged e-mail strings in which they appear, then the city may not withhold the non-privileged e-mails under section 552.107(1) of the Government Code. To the extent the individuals whose information we have marked under section 552.117(a)(1) of the Government Code timely requested confidentiality, the city must withhold this information under section 552.117(a)(1). The city must withhold the marked e-mail addresses under section 552.137 of the Government Code, unless the owners affirmatively consent to their release. 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,

Jonathan Miles

Assistant Attorney General

Open Records Division

JM/bhf

Ref: ID# 472215

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Ref: ID# 472215

BILL ALESHIRE

700 LAVACA-STE 920

AUSTIN TX 78701

(w/o enclosures)

Footnotes

1. You state, and provide documentation showing, the city sought and received clarification of portions of the information requested. See Gov't Code § 552.222 (providing if request for information is unclear, governmental body may ask requestor to clarify request); see also City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex. 2010) (holding that when a governmental entity, acting in good faith, requests clarification or narrowing of an unclear or overbroad request for information, the ten-day period to request an attorney general ruling is measured from the date the request is clarified or narrowed).

2. We assume that 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 that those records contain substantially different types of information than that submitted to this office.

3. As you rely, in part, on Keever v. Finlan, 988 S.W.2d 300 (Tex. App.-- Dallas 1999, pet dism'd), we have carefully reviewed that opinion. It reflects that Finlan had included a request for certain election-related records in a letter addressed directly to Keever as a school board trustee. Id. at 304. The court framed "[t]he dispositive inquiry [a]s whether Finlan was entitled to a writ of mandamus against Keever." Id. at 305. It specifically declined to consider whether the requested records were subject to the Public Information Act. Id. ("whether the records are public information is an issue we need not decide"). The court held that mandamus did not lie under the Act to compel disclosure of the requested records by Keever, as he was neither a governmental body nor the custodian of records for the school district. Id. Here, in contrast, the request for information was addressed to the city itself, and the threshold question is whether the submitted information represents public information that the city must release to the requestor unless an exception to disclosure is applicable.

4. 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.

5. Open Records Decision No. 684 (2009) is a previous determination to all governmental bodies authorizing them to withhold certain categories of information, including e-mail addresses of members of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision

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