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June 7, 2000

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

OR2000-2222

Dear Mr. Keever:

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# 136279.

The Honorable Kirk Wilson, County Judge of Denton County, (the "county judge") received two requests for all information received or generated by his office on March 30 and March 31, 2000, including twenty-one enumerated items. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.103, and 552.107 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

First, we will address your contention that Exhibit F does not constitute public information under section 552.002 of the Government Code. Section 552.002(a) defines public information as follows:

(a) In this chapter, "public information" means information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:

(1) by a governmental body; or

(2) for a governmental body and the governmental body owns the information or has a right of access to it.

Gov't Code 552.002(a). In distinguishing between personal records and public information that is subject to the Public Information Act (the "Act"), this office has considered a variety of factors. See Open Records Decision No. 635 at 2-7 (1995). These factors include the identity of the author of the information, the nature of its contents, its purpose or use, who has possession of or access to it, and whether its creation was necessary to or in furtherance of official business. Id.

You inform this office that Exhibit F is an e-mail between two private parties. You assert that the e-mail does not pertain to official county business and, therefore, is not information collected, assembled, or maintained in connection with the transaction of official business by the county. Further, you assert that the e-mail is not within the scope of the requests.(1)

Although the county has possession of the e-mail, we conclude that, based on its contents and author, it was not created or used to further official county business. Therefore, the e-mail is not "public information" under section 552.002(a) of the Act and the county judge need not disclose the e-mail in Exhibit F.(2)

With regard to Exhibit E, you assert that the submitted e-mails are excepted from public disclosure as attorney work product under section 552.103. Section 552.103, the "litigation exception," encompasses attorney work product. See Open Records Decision No. 575 (1990). You assert that the requested information is excepted from disclosure under section 552.103 of the Government Code. Section 552.103(a) provides as follows:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

A governmental body has the burden of providing relevant facts and documents to show the applicability of an exception in a particular situation. The test for establishing that section 552.103(a) applies is a two-prong showing 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 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 588 (1991). Further, litigation must be pending or reasonably anticipated on the date the requestor applies to the public information officer for access. Gov't Code 552.103(c).

To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. Open Records Decision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). Nor does the mere fact that an individual hires an attorney and alleges damages serve to establish that litigation is reasonably anticipated. Open Records Decision No. 361 at 2 (1983). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986). In this instance, we find that you have not demonstrated that objective steps have been taken toward litigation. Because you have failed to present concrete evidence that litigation is reasonably anticipated, we conclude that you may not withhold Exhibit E under section 552.103.

You also assert that Exhibit E is excepted from disclosure 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). A "confidential communication" is a communication "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Tex. R. Evid. 503(a)(5). 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 some of the information is protected by section 552.107(1). However, we conclude that portions of the submitted information contain purely factual communications that are not protected. See Open Records Decision No. 574 (1990) (the factual recounting of events, including the documentation of calls made, meetings attended, and memos sent, are not excepted from disclosure by section 552.107(1)). We have marked the information which you may withhold under section 552.107(1).

You also assert that Exhibit E is confidential by law under section 552.101. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." However, you have not provided any arguments concerning the applicability of section 552.101 to the submitted information nor do we believe the submitted information is protected by section 552.101. See Gov't Code 552.301(e)(1) (governmental body must submit written comments stating the reasons why the stated exception applies), Open Records Decision No. 575 (1990) (discovery privileges not encompassed by predecessor provision of section 552.101). Therefore, you may not withhold the submitted information under section 552.101.

In conclusion, we find that Exhibit F is not "public information" under section 552.002 and you need not release this information. With regard to Exhibit E, we conclude that section 552.103 does not except the information from disclosure, but we have marked portions of the information protected by section 552.107(1). You must release the remaining information.

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/nc

Ref: ID# 136279

Encl. Marked documents

cc: Mr. Charles Siderius
Denton Record-Chronicle
P.O. Box 369
Denton, Texas 76201
(w/o enclosures)


 

Footnotes

1. We note that the requestor expressly provides that he does not seek personal e-mails between co-workers not concerning the transaction of official county business.

2. We note this ruling is limited to Exhibit F. This ruling must not be relied on as a previous determination regarding any other records.
 

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