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February 14, 2000

Mr. Thomas Keever
Assistant District Attorney
Denton County
P.O. BOX 2850
Denton, Texas 76202

OR2000-0517

Dear Mr. Keever:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 132319.

The County of Denton (the "county") received a request for twenty-one categories of information generated on December 1, 1999 by the Denton County Commissioner's Court. You contend that the requested information is either not covered by the Public Information Act (the "Act") or not subject to public disclosure for three specific reasons that are discussed and resolved below. You further assert that if the information does fall within the purview of the Act, then the documents generated that day are excepted from disclosure pursuant to sections 552.101, 552.103 and 552.107 of the Government Code. We have considered the exceptions that you claim and reviewed the document at issue.

You first assert that the office of the county judge is not a governmental body, as defined by section 552.003(1)(A) of the Government Code, and instead is a judicial office that is excluded from the scope of section 552 of the Government Code (the "Public Information Act"). You argue that the office of the county judge is not subject to the Public Information Act (1) because it is not a "governmental body," as defined by section 552.003(1)(A) of the Government Code, and (2) because it is a judicial office, and under the Act, "governmental body' . . . does not include the judiciary." Gov't Code 552.003(1)(B). This office addressed substantially the same contention in Open Records Decision No. 204 (1978). There, a county judge had received a request for records relating to his correspondence with constituents and to reimbursement of his expenses by the county. He contended that he was a member of the judiciary and therefore was excluded from the scope of the former Public Information Act, article 6252-17a of Vernon's Texas Civil Statutes. This office noted that, under the former Act, the definition of "governmental body" encompassed both "the commissioners court of each county" and "the part, section, or portion of every organization, corporation, commission, committee, institution, or agency which is supported in whole or in part by public funds[.]" ORD 204 at 1 (quoting V.T.C.S. art. 6252-17a, (2)(1)(B), (F)). We also acknowledged that, under the Act, "the Judiciary [was] not included within [the definition of governmental body]." Id. (quoting V.T.C.S. art. 6252-17a, (2)(1)(G)). We pointed out, however, that "[t]he county judge is judge of the county court, and also is presiding officer of the commissioners court," id., and as such "is not a judicial officer only." Id. at 2 (quoting Clark v. Finley, 54 S.W. 343 (Tex. 1899)). Based on these considerations, we concluded:

The commissioners court is expressly included in the definition of governmental body . . . and the county judge is a part of the commissioners court. . . . Section 2(1)(F) makes every part of an organization, institution or agency supported by public funds a governmental body and subject to the [Open Records] Act. Accordingly, we believe each component of the commissioners court, including the county judge, is subject to the Act.

We do not believe that there is an irreconcilable conflict within the definition of 'governmental body' as to its application to the county judge as part of the commissioners court, and its exclusion of the judiciary from the Act. We believe that information held by the county judge is subject to the Public Information Act except to the extent it pertains to cases and proceedings before the county court. This construction of the Act is consistent with both the requirement that it be liberally construed in favor of granting any request for information and the exclusion of the judiciary from the Act.

ORD 204 at 2 (emphasis added). Since the issuance of Open Records Decision No. 204, there has been no fundamental change in either the constitutional responsibilities of a county judge or the operative language of the Public Information Act.(1) See Tex. Const. Art. V, 15,16, 17, 18; Gov't Code 552.001, 552.003(1)(A)(ii), (x) and (B); see also Benavides v. Lee, 665 S.W.2d 151, 152 (Tex. App.-San Antonio 1983, no writ) ("The intent of the Public Information Act must not be circumvented by an unnecessarily broad reading of the judiciary exclusion.").(2) Accordingly, we conclude that, to the extent that the requestor seeks information that does not pertain to cases and proceedings before the constitutional county court, the office of the County Judge of Denton County is subject to the requirements of chapter 552 of the Government Code.

You also contend that the Public Information Act does not require a governmental body to provide access to information requested on such a broad, generalized basis. Rather, citing section 552.222 of the Government Code as authority, you contend that the requestor should be required to narrow the scope of his request to specify the type of correspondence sought or the specific subject matter of the requested correspondence. It is well established that a governmental body may not disregard a request for records made pursuant to the Public Information Act merely because a requestor does not specify the exact documents desired. A governmental body must make a good faith effort to relate a request to information held by it. Open Records Decision Nos. 561 at 8-9 (1990), 87 (1975). Section 552.222(b) of the Government Code, however, provides that if a governmental body is unable to determine the nature of the records being sought, it may ask the requestor to clarify the request so that the desired records may be identified.

However, section 552.222(b) does not stand for the proposition that a request may be denied merely because it seeks a broad range of documents. The purpose of this section is to authorize a dialogue between the governmental body and the requestor regarding the scope of the records request.(3) Open Records Decision No. 663 (1999). When a requestor makes a vague or broad request, the governmental body should make a good faith effort to advise the requestor of the type of documents available so that the requestor may narrow or clarify the request. See id. at 5.

We have reviewed the open records requests submitted to the county judge. Each request specifies the physical or other form of the information, the subject matter of the information, and the time frame for the creation or receipt of the requested information. The requestor states that, with certain limitations, he wants access to each document produced or received by the county judge and his office regarding certain matters during the time interval specified in each request.(4) The requests, while encompassing numerous facets of county business, are sufficiently clear and understandable to inform the county judge of the records being requested, as is evidenced by your ability to identify records responsive to each of the individual requests.

Next we examine the submitted information that you claim is responsive to this specific request. You submitted a letter that represents correspondence between the judge's private counsel and the judge, with an attachment that represents correspondence from the private counsel to opposing attorneys. You state that this letter and attachment, are excepted from public disclosure under sections 552.101, 552.103, and 552.107 of the Government Code. We have considered the exceptions that you claim and have reviewed the documents at issue.

Section 552.103(a) excepts from disclosure information relating to litigation to which a governmental body is or may be a party. The governmental body has the burden of providing relevant facts and documents to show that section 552.103(a) is applicable in a particular situation. In order to meet this burden, the governmental body must show 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 (Tex. App.-Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App. -Houston [1 st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The governmental body must meet both prongs of this test for information to be excepted under 552.103(a).

In this instance, you have stated that Cause No. 44051, in which the boundary line for Tarrant and Denton counties is in dispute, is an active case. You have met the first prong of the test. Next, we decide whether the responsive information is related to the litigation at issue.

Furthermore, we conclude that the information relates to the pending litigation for the purposes of section 552.103(a), thus meeting the second prong of the test. Therefore, the letter may be excluded from public disclosure. However, the attachment represents a letter to opposing counsel in the litigation at issue. Section 552.103(a) is inapplicable if an opposing party in litigation has seen or had access to the documents. Open Records Decision Nos. 349 (1982), 320 (1982). Therefore, the attachment is not excepted from public disclosure under section 552.103 of the Government Code.

You also state that the requested information is excepted from public disclosure under section 552.101 of the Government Code. Section 552.101 of the Government Code states that information is excepted from public disclosure "if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code 552.101. Although you raise section 552.101 for the requested information, you do not explain how the release of the attachment would implicate a person's common law or constitutional privacy. Furthermore, we are not aware of, nor have you raised or referred us to, any law that would make the attachment confidential. Therefore, we conclude that the requested information is not protected from disclosure under section 552.101.

Finally, you raise section 552.107 of the Government Code as excepting the responsive information from public disclosure. Section 552.107(1) excepts information that an attorney cannot disclose because of a duty to his client. This office concluded, in Open Records Decision No. 574 (1990), that section 552.107 excepts from public disclosure only "privileged information," that is, information that reflects either confidential communications from the client to the attorney or the attorney's legal advice or opinions. In addition, basically, factual communications from attorney to client, or between attorneys representing the client are not protected. Open Records Decision No. 574 at 3 (1990). This attachment is a letter to the opposing counsel. Therefore, it does not fall within the purview of section 552.107(1). As section 552.107(1) is inapplicable, we conclude that the attachment must be released.

This letter ruling is limited to the particular records 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 records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

ncl/nc

Ref: ID# 132319

Encl. Submitted documents

cc: Mr. Charles Siderius
Denton Record-Chronicle
P.O. Box 369
Denton, Texas 76201


 

Footnotes

1. The Public Information Act was codified as chapter 522 of the Government Code, and the former article 6252-17a of Vernon's Texas Civil Statutes was repealed by the Seventy-third Legislature. The codification of the former Public Information Act was a non-substantive revision. See Act of May 4, 1993 73rd Leg., R.S., ch. 268, 47, 1993 Tex. Gen. Laws 583, 986.

2. -

3. Section 552.222(b) also limits the nature of the inquiries by the governmental body to those regarding the requested documents themselves. This section prohibits the governmental body from inquiring into the purpose for which the requestor seeks the records.

4. The requestor has excluded from the scope of his request "mass mailings or pre-printed materials intended for wide distribution . . . [and] personal e-mails between co-workers not concerning the transaction of official Denton County business.
 

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