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June 18, 1999

Ms. Marie E. Galindo
Assistant City Attorney
City of Midland
P.O. Box 1152
Midland, Texas 79702-1152

OR99-1684

Dear Ms. Galindo:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 125073.

The City of Midland (the "city") received one request for "all the back-up material pertaining to the agenda of the finance and audit committee meeting held on March 4, 1999 at 3:30 P.M." and a second request for, among other things, "[f]irst quarter financial highlights and forecast (Oct, Nov, Dec 98)." The financial highlights are subject to both requests. You state that you have released to both of the requestors all of the information responsive to their respective requests other than information which you claim is excepted from disclosure. You submit to this office the information at issue. You claim that the information at issue is excepted from disclosure under sections 552.103, 552.107, 552.111, and 552.116 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

You assert that the Financial Highlights Report, Exhibit A(1), in its entirety, is excepted from required public disclosure because it is a preliminary draft and that "what the Board discussed at the meeting was, in essence, the 'final version' of the Finance Director's preliminary draft." Section 552.111 excepts from disclosure "an interagency or intra-agency memorandum or letter that would not be available by law to a party in litigation with the agency." The preliminary draft of a policymaking document that has been released or is intended for release in a final form is excepted from disclosure in its entirety under section 552.111 because such a draft necessarily represents the advice, recommendations, or opinions of the drafter as to the form and content of the final document. Open Records Decision No. 559 (1990). The draft itself, including comments, underlining, deletions, and proofreading marks, is excepted from disclosure by section 552.111. Id. Purely factual matter, where severable, must generally be released. Id. However, when such factual matter is contained in the final version of the document, the release of the final version satisfies this requirement. Id. A discussion at a public meeting does not constitute a final draft of a document. See id. You may not withhold the Financial Highlights Report as a draft document.

You also assert that the Financial Highlights Report in its entirety "consists of advice, opinion and recommendations used in the deliberative process." In the alternative, you assert that highlighted portions of the Financial Highlights Report are excepted from disclosure by section 552.111. In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. An agency's policymaking functions, however, do not encompass internal administrative or personnel matters; disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. Open Records Decision No. 615 at 5-6 (1993). In addition, section 552.111 does not except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Id. at 4-5. After reviewing the information you have highlighted in Exhibit D, the Financial Highlights Report, we agree that it consists of advising and opion, reflecting the policymaking processes of the governmental body. Therefore, you may withhold the highlighted information in Exhibit D. On the other hand, the highlighted notes on Exhibit B, the Golf Course Report, are factual information and must be released.

Finally, you assert that 552.103 excepts from disclosure Exhibit C, a memo from the city auditor related to a claim against Cox Communications, Inc. Section 552.103(a) excepts from disclosure information:

    (1) relating to litigation of a civil or criminal nature or settlement negotiations, 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; and

    (2) that the attorney general or the attorney of the political subdivision has determined should be withheld from public inspection.

The city has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The city must meet both prongs of this test for information to be excepted under 552.103(a). You state that "the City can expect to file the petition at any time . . . ." We find that the memo is related to the city's anticipated lawsuit against Cox Communications, Inc. You may withhold the memo from disclosure under 552.103(a)(2).

Generally, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Emilie F. Stewart
Assistant Attorney General
Open Records Division

EFS\eaf

Ref: ID# 125073

Encl: Submitted documents

cc: Ms. Phyllis Hillman
P.O. Box 5178
Midland, Texas 79704
(w/o enclosures)

Mr. Thomas E. Clark
Secure Source, Inc.
710 South Kimball Avenue
Southlake, Texas 76092
(w/o enclosures)


 

Footnotes

1. Exhibits A and D are the same document. Exhibit D contains highlighting that does not appear in Exhibit A.

2. Having ruled that you may withhold this document under section 552.103(a), we need not address the other exceptions from disclosure that you raise for this document.
 

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