|Office of the Attorney General - State of Texas
November 12, 1999
Mr. Richard Currie, Jr.
Dear Mr. Currie:
You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 129377.
The City of Palestine (the "city"), which you represent, received a written request for the following information:
You have informed this office in subsequent correspondence that the city has released to the requestor "the proposed cable contract." You contend that the remaining requested information, a representative sample of which you submitted to this office, is excepted from required public disclosure pursuant to sections 552.104, 552.106, and 552.107 of the Government Code.(1)
Section 552.104 of the Government Code excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." The purpose of this exception is to protect a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 (1991). Governmental bodies may withhold bid information under section 552.104 while governmental officials are in the process of evaluating the proposals and asking competitors to clarify their bids. Open Records Decision No. 170 (1977). Section 552.104 requires a showing of some actual or specific harm in a particular competitive situation. Open Records Decision No. 541 (1990). You have not demonstrated that the information at issue pertains to a particular competitive situation at this time. The city may not withhold any of the requested information pursuant to section 552.104.
Section 552.106 of the Government Code protects drafts and working papers involved in the preparation of proposed legislation. The purpose of the exception is to encourage frank discussion on policy matters between the subordinates or advisors of a legislative body and the legislative body; it protects the internal "deliberative" or policy-making processes of a governmental body. Open Records Decision No. 460 (1987). Section 552.106 does not except purely factual material; rather, it excepts only policy judgments, recommendations, and proposals involved in the preparation of proposed legislation. Id.
The proposed city ordinance you submitted to this office does not contain factual information. Rather, it consists solely of a draft of proposed legislation and hand-written notes pertaining thereto. Assuming this document has not been released to anyone outside the city, such as the cable company with which the city is currently negotiating, we conclude that this and similar documents may be withheld in their entirety pursuant to section 552.106. On the other hand, all drafts that have been revealed to outside parties must now be released to the public. See Gov't Code § 552.007 (prohibiting selective disclosure).
Section 552.107(1) of the Government Code protects information coming within the attorney-client privilege. See Open Records Decision No. 574 (1990). In instances where an attorney represents a governmental entity, the attorney-client privilege protects only an attorney's legal advice and client confidences. Id. After reviewing the documents at issue, we have marked the portions of the documents at issue that the city may withhold pursuant to section 552.107(1). The remaining information must be released to the requestor.
We are resolving this matter with an informal letter ruling rather than with a published open records decision.(2) 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.
Ref.: ID# 129377
cc: Ms. Suzanne Meaux
1. Although you also suggest in your most recent letter to this office that the information at issue may be excepted from required public disclosure pursuant to the "litigation exception," section 552.103 of the Government Code, you did not raise this exception within the ten-business days following the city's receipt of the records request. Furthermore, you did not demonstrate in your original correspondence that litigation was reasonably anticipated at the time the city received the records request. See Gov't Code § 552.103(c). We therefore do not consider here the applicability of section 552.103 to the records at issue.
2. In concluding that the city may withhold information pursuant to sections 552.106 and 552.107(1), this office assumes that the city complied with section 552.301(d) of the Government Code and provided the requestor, within ten business days following receipt of the records request, a copy of the city's request for a ruling from this office. If it did not, the requested information is presumed to be public and must be released in its entirety. See Gov't Code § 552.302.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US