December 21, 2012

Ms. Tamra English

Office of General Counsel

The University of Texas System

201 West Seventh Street

Austin, Texas 78701

OR2012-20733

Dear Ms. English:

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# 475082 (UT OGC #146700 and #146706).

The University of Texas System (the "system") received two requests from the same requestor for all records related to all aspects of a former employee's spending created, received, or discovered from September 1, 2011 to the date of the request. ⁽¹⁾ You state you have released some information. You claim that the remaining requested information is excepted from disclosure under sections 552.107, 552.111, and 552.1235 of the Government Code. You also state release of this information may implicate the proprietary interests of a third party. Accordingly, you state, and provide documentation showing you notified Grant Thornton, L.L.P. ("Grant Thornton") of the request for information and of its right to submit arguments to this office as to why the submitted information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in the Act in certain circumstances). We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽²⁾

Initially, we address your assertion that some of the information at issue is subject to a previous request for information, as a result of which this office issued Open Records Letter No. 2012-11007 (2012). In that ruling, we determined the University of Texas Southwestern Medical Center may withhold a portion of the submitted information under Texas Rule of Evidence 503 and the remaining information under section 552.107 of the Government Code. Although you seek to rely on that prior ruling, that request for information was submitted to a different governmental body. Therefore, the system may not rely on our previous ruling to the University of Texas Southwestern Medical Center as a previous determination for the information at issue. See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure).

Next, we must address the system's obligations under the Act. Pursuant to section 552.301(e)(1)(D) of the Government Code, the governmental body is required to submit to this office within fifteen business days of receiving the request for information a copy of the specific information requested or representative samples thereof. See Gov't Code § 552.301(e)(1)(D). Although you timely submitted some of the responsive information, as of the date of this letter you have not submitted the documents that you incorrectly asserted were subject to a previous determination. Thus, we find the system has failed to comply with the requirements of section 552.301 with respect to that information.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption the information is public and must be released, unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See id. § 552.302; Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 630 (1994). Normally, a compelling reason exists when third-party interests are at stake or when information is confidential under the Act or other law. Open Records Decision No. 150 (1977). Although you assert this information is subject to section 552.107 of the Government Code, section 552.107 is a discretionary exception to disclosure that protects only a governmental body's interests and may be waived. See Open Records Decision Nos. 676 at 10-11 (2002) (attorney-client privilege under section 552.107(1) may be waived), 665 at 2 n.5 (2000) (discretionary exceptions generally). Thus, in failing to comply with section 552.301, the system has waived its argument under section 552.107 with respect to the documents you incorrectly asserted were subject to a previous determination and may not withhold those documents on the basis of that section.

We now turn to your arguments for the submitted information. Section 552.107(1) of the Government Code protects information that comes within the attorney-client privilege. 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). 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., 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 state the e-mails and attachments you have marked consist of attorney-client privileged communications between a system attorney, system officials and personnel, and representatives of Grant Thornton. You state Grant Thornton was hired as a representative of the system attorney. You further state the communications have been kept confidential. Based on your representations and our review, we find you have demonstrated the applicability of the attorney-client privilege to the information you have marked. Thus, the system may generally withhold the information you have marked under section 552.107(1) of the Government Code. ⁽³⁾ We note, however, some of these e-mail strings include e-mails and attachments received from or sent to non-privileged parties. Furthermore, if the e-mails and attachments 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 and attachments, which we have marked, are maintained by the system separate and apart from the otherwise privileged e-mail strings in which they appear, then the system may not withhold these non-privileged e-mails and attachments under section 552.107(1) of the Government Code.

To the extent the e-mails we have marked exist separate and apart from the otherwise attorney-client privileged e-mail strings, portions of the non-privileged communications contain e-mail addresses that are subject to section 552.137 of the Government Code. ⁽⁴⁾ 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). Accordingly, the system must withhold the e-mail addresses we have marked under section 552.137 of the Government Code, unless the owners of the addresses have affirmatively consented to their release. See id. § 552.137(b).

Section 552.1235 of the Government Code excepts from disclosure "[t]he name or other information that would tend to disclose the identity of a person, other than a governmental body, who makes a gift, grant, or donation of money or property to an institution of higher education[.]" Gov't Code § 552.1235(a). "Institution of higher education" is defined by section 61.003 of the Education Code. Id. § 552.1235(c). Section 61.003 defines an "[i]nstitution of higher education" as "any public technical institute, public junior college, public senior college or university, medical or dental unit, public state college, or other agency of higher education as defined in this section." See Educ. Code § 61.003.

You state the information you have marked pertains to individuals who are donors to the system and who have not given the system permission to release their names and other identifying information. Based on your representations and our review, we agree portions of the information at issue identify persons who are donors to the system. Accordingly, the system must withhold this information, which we have marked, under section 552.1235. However, one of the individuals at issue is publicly identified as a donor on the system's website. Accordingly, we conclude the remaining information may not be withheld under section 552.1235 of the Government Code.

We next note an interested third party is allowed ten business days after the date of its receipt of the governmental body's notice to submit its reasons, if any, as to why information relating to that party should not be released. See Gov't Code § 552.305(d)(2)(B). As of the date of this ruling, we have not received comments from Grant Thornton. Thus, Grant Thornton has not demonstrated it has a protected proprietary interest in any of the remaining information. See id. § 552.110(a)-(b); Open Records Decision Nos. 661 at 5-6 (1999) (to prevent disclosure of commercial or financial information, party must show by specific factual evidence, not conclusory or generalized allegations, that release of requested information would cause that party substantial competitive harm), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3. Accordingly, the system may not withhold any of the remaining information on the basis of any proprietary interest Grant Thornton may have in the information.

In summary, the system may generally withhold the information you have marked under section 552.107(1) of the Government Code. However, if the non-privileged e-mails and attachments, which we have marked, exist separate and apart from the otherwise privileged e-mail string in which they appear, then the system may not withhold the non-privileged e-mails and attachments under section 552.107(1) of the Government Code. To the extent the e-mails we have marked exist separate apart from the otherwise attorney-client privileged e-mail strings, the system must withhold the e-mail addresses we have marked under section 552.137 of the Government Code, unless the owners of the addresses have affirmatively consented to their release. The system must also withhold the information we have marked under section 552.1235 of the Government Code. 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,

Jasmine D. Wightman

Assistant Attorney General

Open Records Division

JDW/dls

Ref: ID# 475082

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. You state the system sought and received clarification of the information requested. See Gov't Code § 552.222 (providing that 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 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. 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 our ruling is dispositive, we need not address your remaining argument against disclosure of this information.

4. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

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