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May 30, 2000

Mr. K. Scott Oliver
Assistant Criminal District Attorney
Bexar County
300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

OR2000-2113

Dear Mr. Oliver:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135783.

Bexar County (the "county") received a request for all e-mail communications to and from the county judge, on any county-owned computer, during the period of July 15, 1999 to November 15, 1999. You assert that you will release responsive information for which you do not assert exceptions to disclosure. You claim that some of the requested information is excepted from disclosure under sections 552.101, 552.107, 552.111, and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

You assert that Exhibits 1-9 and 15-16 are protected by section 552.101 in conjunction with the common law right to privacy. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information protected by the common law right to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The doctrine of common law privacy protects information that contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and the information must be of no legitimate concern to the public. Id.

This office has found that the following types of information are excepted from required public disclosure under common law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps), personal financial information not relating to the financial transaction between an individual and a governmental body, see Open Records Decision Nos. 600 (1992), 545 (1990), and information concerning the intimate relations between individuals and their family members, see Open Records Decision No. 470 (1987).

After reviewing Exhibits 1-9 and 15-16, we conclude that the information in these exhibits is not protected by common law privacy. Therefore, you may not withhold these exhibits under section 552.101.

You assert that Exhibit 16 is protected under section 552.107(1). Section 552.107(1) excepts information that an attorney of a political subdivision cannot disclose because of a duty to his client. In Open Records Decision No. 574 (1990), this office concluded 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; it does not apply to all client information held by a governmental body's attorney. Open Records Decision No. 574 at 5 (1990). When communications from attorney to client do not reveal the client's communications to the attorney, section 552.107 protects them only to the extent that such communications reveal the attorney's legal opinion or advice. Id. at 3. In addition, purely factual communications from attorney to client, or between attorneys representing the client, are not protected. Id. After reviewing the submitted information, we conclude that you may withhold Exhibit 16 under section 552.107(1).(1)

You next assert that Exhibits 10-15 are excepted from disclosure under section 552.111 of the Government Code. Section 552.111 excepts from required public disclosure interagency and intra-agency memoranda and letters, but only to the extent that they contain advice, opinion, or recommendation intended for use in the entity's policymaking process. Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.-Austin 1992, no writ); Open Records Decision No. 615 at 5 (1993). The purpose of this section is "to protect from public disclosure advice and opinions on policy matters and to encourage frank and open discussion within the agency in connection with its decision-making processes." Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.-San Antonio 1982, writ ref'd n.r.e.) (emphasis added). However, an agency's policymaking functions do not encompass internal administrative or personnel matters, as disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. See City of Garland v. Dallas Morning News, 43 Tex. Sup. Ct. J. 303 (Jan.13, 2000); Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455 (Tex. App.-Houston [14th Dist.] 1996, writ denied) (records relating to problems with specific employee do not relate to making of new policy but merely implement existing policy); Open Records Decision No. 615 at 5-6 (1993). But see Open Records Decision No. 631 (1995) (finding personnel matters of a broader scope were excepted from disclosure under section 552.111).

After reviewing the submitted information, we conclude that Exhibits 10 and 12 contain advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body and, therefore, may be withheld. With regard to Exhibit 13, we find that some of the information consists of advice, recommendations, and opinions but some of the information in Exhibit 13 contains purely factual information which you may not withhold under section 552.111. Accordingly, we have marked the information that you may withhold under section 552.111. Further, we find that Exhibit 11 contains merely factual information and may not be withheld under section 552.111. Exhibits 14 and 15 relate to routine personnel matters and, therefore, this information is not protected under section 552.111. See City of Garland, 43 Tex. Sup. Ct. J. at 303.

In conclusion, we have found that none of the exhibits are protected by common law privacy. However, we have found that Exhibit 16 is protected by section 552.107(1) and that section 552.111 excepts Exhibits 10 and 12 and portions of Exhibit 13. You must release the remaining information to the requestor.

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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/ch

Ref: ID# 135783

Encl. Marked documents

cc: Mr. David Bennett
San Antonio Current
1500 N. St. Mary's Street
San Antonio, Texas 78215
(w/o enclosures)


 

Footnotes

1. Having found Exhibit 16 excepted from disclosure under section 552.107(1), we need not address the applicability of sections 552.111 and 552.131 to this information.
 

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