Click for home page Office of the Attorney General - State of Texas
John Cornyn
image
 

October 29, 1999

Mr. W. Lane Lanford
Executive Director
Public Utility Commission of Texas
P.O. Box 13326
Austin, Texas 78711-3326

OR99-3051

Dear Mr. Lanford:

You ask whether certain information is subject to required public disclosure under the Texas Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 130068.

The Public Utility Commission (the "PUC") received two requests for a copy of an electronic mail message referenced as ACI Exhibit 153 in Order No. 20 of Docket Nos. 20226 and 20272. Employees of Southwestern Bell Telephone Company created and received the requested e-mail. You inform us that the PUC notified Southwestern Bell of this request and of its right to raise exceptions to disclosure and its responsibility to explain the applicability of the raised exceptions. Gov't Code 552.305(d). Southwestern Bell maintains that the requested information is excepted from required public disclosure based on sections 552.101 and 552.107(2) of the Government Code. You state that the PUC "takes no position on whether Southwestern Bell has properly asserted confidentiality claims that fall within one or more exceptions to the Act."

Southwestern Bell argues that the requested information is subject to a protective order, and that, consequently, the information is excepted from disclosure based on sections 552.101 and 552.107(2) of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." A protective order issued by a state district court may render information "confidential by law for purpose of section 552.101.(1) Section 552.107(2) excepts from disclosure information if "a court by order has prohibited disclosure of the information."

Two parties seeking interconnection agreements with Southwestern Bell petitioned the Commission for arbitration proceedings pursuant to the Telecommunications Act of 1996. Arbitrators in those proceedings issued Order No. 20 in which the arbitrators ruled that the information was not privileged and admitted the information into evidence.(2) However, the arbitrators stayed the ruling, pending a ruling on appeal by the Commissioners.(3) In the Order on Appeal of Order No. 20, the Commissioners rule in pertinent part that the Commission "does not reach the issue of whether the exhibit is privileged, as a matter of law."(4)

Even assuming, as Southwestern Bell argues, that the Commission is a "court" for purposes of section 552.101 and 552.107(2), we do not believe that this order makes the information confidential for purposes of section 552.101 or prohibits the disclosure of the information for purposes of section 552.107(2).

Southwestern Bell argues that the Commissioners' Order on Appeal of Order No. 20 has the effect of retaining the confidential status of the information under the arbitrators' protective order, Order No. 2. Order 2 permits a party to designate certain information produced by such party as confidential and protects such information during the proceeding. (5) The order provides that if the arbitrators, the Commission secretary or staff receives a request under the Act for information claimed to be confidential, the arbitrators, secretary or staff shall notify the responding party of the request and timely request an attorney general opinion as to whether the information falls within one of the Act's exceptions. If an attorney general opinion requires disclosure of information designated as confidential, either in whole or in part, then Order 2 states that the Commission shall not release such information publicly for ten calendar days in order to allow the responding party time to pursue any legal remedies that it may have. The order further states that the material received by the Commission "shall be treated as exempt from disclosure until and unless such confidential information is determined to be public information as the result of an Open Records Decision by the Attorney General, or pursuant to an order of the presiding officer entered after notice to the parties and hearing, or pursuant to an order of a court having jurisdiction."(6) Consequently, when information a party designates as confidential is requested under the Act, we believe that Order No. 2 prohibits the PUC from releasing such information only to the extent that this office, or one of the other forums indicated, determines that the information is not subject to disclosure under the Act. In other words, if this office determines that the information is subject to disclosure, Order No. 2 does not protect the information from public disclosure.

Southwestern Bell asserts that the requested information is protected from public disclosure pursuant to the attorney-client privilege. Without determining whether the e-mail message falls within the attorney-client privilege, we find that neither section 552.107(1) nor section 552.101 of the Act recognizes protection for a third party's attorney-client privileged communication where, as here, the alleged privilege does not relate to a confidential communication between a governmental body and an attorney for that governmental body. Consequently, the PUC may not withhold the requested information from public disclosure as a privileged communication.

In conclusion, the PUC may not withhold the requested information from the requestors based on section 552.101 or 552.107(2) of the Government Code.

We are resolving this matter with this 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 may not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Kay H. Hastings
Assistant Attorney General
Open Records Division

KHH/ljp

Ref.: ID# 130068

encl. Submitted document

cc: Mr. Bruce Hight
Austin American Statesman
P.O. Box 670
Austin, Texas 78767
(w/o enclosures)

Mr. R. A. Jake Dyer
Fort Worth Star-Telegram
1005 Congress Avenue, #920
Austin, Texas 79701
(w/o enclosures)


 

Footnotes

1. See Open Records Decision No. 389 (1983) (construing predecessor provision).

2. Tex. Pub. Util. Comm'n, Petition of Accelerated Connections, Inc., d/b/a ACI Copr. for Arbitration to Establish an Interconnection Agreement with Southwestern Bell Telephone Company and Petition of DIECA Communications, Inc., d/b/a Covad Communications Company for Arbitration of Interconnection Rates, Terms, Conditions and Related Arrangements with Southwestern Bell Telephone Company, Consolidated Docket Nos. 20226 and 20272, Order No. 20 (July 24, 1999).

3. Tex. Pub. Util. Comm'n, Consolidated Docket Nos. 20226 and 20272, Order No. 20 at 10 (July 24, 1999).

4. Tex. Pub. Util. Comm'n, Petition of Accelerated Connections, Inc., d/b/a ACI Copr. for Arbitration to Establish an Interconnection Agreement with Southwestern Bell Telephone Company and Petition of DIECA Communications, Inc., d/b/a Covad Communications Company for Arbitration of Interconnection Rates, Terms, Conditions and Related Arrangements with Southwestern Bell Telephone Company, Consolidated Docket Nos. 20226 and 20272, Order on Appeal of Order No. 20 (October 13, 1999).

5. Tex. Pub. Util. Comm'n, Petition of Accelerated Connections, Inc., d/b/a ACI Copr. for Arbitration to Establish an Interconnection Agreement with Southwestern Bell Telephone Company and Petition of DIECA Communications, Inc., d/b/a Covad Communications Company for Arbitration of Interconnection Rates, Terms, Conditions and Related Arrangements with Southwestern Bell Telephone Company, Consolidated Docket Nos. 20226 and 20272, Order No. 2 at 4 (January 19, 1999), see 16 T.A.C. 22.306.

6. Tex. Pub. Util. Comm'n, Consolidated Docket Nos. 20226 and 20272, Order No. 2 at 4 (January 19, 1999).
 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer


Home | ORLs