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May 2, 2000

Mr. John Steiner
Division Chief
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546

OR2000-1700

Dear Mr. Steiner:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135756.

The City of Austin (the "city") received a request for 1) information relating to the payment of comprehensive drainage fees issued by the city's Watershed Protection Department to commercial utility customers since 1991, 2) the accounting for such fees, 3) documents prepared in conjunction with draft ordinance 18-3, and 4) information reflecting the impact of changes proposed in the draft ordinance when compared to the current ordinance and procedures. You advise that the city has no information responsive to item 4 of the request and that it is releasing most of the information responsive to items 1 and 2. You seek to withhold the other information responsive to the request under sections 552.101, 552.106, 552.107, and 552.111 of the Government Code.

Section 552.106(a) protects drafts and working papers involved in the preparation of proposed legislation. The purpose of the exception is similar to that of section 552.111: to encourage frank discussion on policy matters between the subordinates or advisors of a legislative body and the legislative body and to thereby protect 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. Section 552.106 applies only to drafts and working papers prepared by persons with some official responsibility to prepare them for the legislative body. Id.

You advise that the information responsive to item 2 of the request that you seek to withhold consists of a draft working paper prepared for the city's annual budget ordinance. Based on your representations, and having reviewed the information in question, we conclude that you may withhold that information under section 552.106(a).

Section 552.107(1) incorporates the attorney-client privilege. The section protects information "that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct." 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 confidential attorney-client communications. Id. Accordingly, these two classes of information are the only information contained in the records at issue that may be withheld pursuant to the attorney-client privilege.

You advise that the responsive information to item three of the request "consists solely of communications of a confidential nature between the City Attorney's Office and a client." Based on these representations, and having reviewed the information at issue, we conclude that you may withhold most of the information under section 552.107(1). We have marked information which appears to be non-confidential factual information not protected by section 552.107(1) which must, consequently, be released. We do not address your section 552.111 claim except to note that that provision does not protect severable factual information either. See Open Records Decision No. 615 (1993).(1)

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,

William Walker
Assistant Attorney General
Open Records Division

WMW/ljp

Ref: ID# 135756

Encl. Submitted documents

cc: Mr. W.H. Morea, III
6112 Anemone Cove
Austin, Texas 78759
(w/o enclosures)


 

Footnotes

1. We also do not address your section 552.101 claim with respect to attorney-client communications except to note that this office currently adheres to the conclusion of Open Records Decision No. 574 that the appropriate exception for such materials is that now under section 552.107(1) and that protection thereunder does not extend to factual information other than client confidences.
 

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