|Office of the Attorney General - State of Texas
July 20, 2000
Mr. John Steiner
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# 137254.
The City of Austin (the "city") received a request for information "concerning contractual negotiations with the City of West Lake Hills." You indicate that some of the information will be made available to the requestor. You claim that the remaining information which you have submitted for our review is excepted from disclosure under sections 552.101, 552.107(1) and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.
You claim that portions of the submitted information are excepted from disclosure under section 552.111 of the Government Code. Section 552.111 excepts 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. Open Records Decision No. 615 (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). In Open Records Decision No. 615, this office held that
to come within the [section 552.111] exception, information must be related to the policymaking functions of the governmental body. An agency's policymaking functions do not encompass routine internal administrative and personnel matters . . . . [Emphasis in original.]
The information for which you are claiming an exception under section 552.111 consists of a draft of an interlocal agreement for the City of Austin to provide certain wastewater services to the City of West Lake Hills (the "agreement"), and a city employee memorandum related to the agreement. After careful review, we agree that the city employee memorandum may be withheld pursuant to section 552.111. Additionally, in Open Records Decision No. 559 (1990), this office held that a preliminary draft of a document that is intended for release in a final form necessarily represents the advice, opinion, and recommendation of the drafter as to the form and content of the final document and as such may be withheld pursuant to the predecessor of section 552.111. The draft document before us pertains to policy matters concerning the city. Assuming that the agreement in fact is released to the public in its final form, we conclude that the city may withhold from disclosure the submitted draft pursuant to section 552.111.
You also assert the attorney-client privilege under sections 552.101 and 552.107 to protect from disclosure some of the submitted information. Although this office at one time applied the attorney-client privilege under the statutory predecessor to section 552.101, we today believe that the privilege is properly asserted in the context of the Public Information Act only under section 552.107(1). See Open Records Decision No. 575 at 2 (1990). Section 552.107(1) excepts information from disclosure if it is 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 Evidence or the Texas Disciplinary Rules of Professional Conduct. See Gov't Code § 552.107(1). This exception does not apply to all client information held by a governmental body's attorney; rather, it excepts from public disclosure only "privileged information," i.e., communications that are made to the attorney in confidence and in furtherance of rendering professional legal services or that reveal the attorney's legal opinion or advice. Open Records Decision Nos. 589 at 1(1991), 574 at 3 (1990), 462 at 9-11(1987). We believe you have demonstrated that the documents you have marked are excepted from disclosure by section 552.107(1). Therefore, you may withhold from disclosure the marked documents.
In summary, the city may withhold from disclosure the draft interlocal agreement and city employee memorandum under section 552.111 of the Government Code. The remaining submitted communications may be withheld from disclosure under section 552.107(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.
Carla Gay Dickson
Ref: ID# 137254
Encl. Submitted documents
cc: Mr. Dennis McCutchen
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US