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August 8, 2000

Mr. Pete M. Schenkkan
Graves, Dougherty, Hearon & Moody
515 Congress Avenue
Suite 2300
Austin, Texas 78701

OR2000-3011

Dear Mr. Schenkkan:

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# 137361.

Senator Troy Fraser and your law firm, Graves, Dougherty, Hearon & Moody ("GDHM"), which represents the senator, received requests for 17 categories of information relating to the several Texas tobacco litigation matters ("Tobacco Litigation") (In re: Private Counsel, No. 5:98-CV-270, and State of Texas v. American Tobacco Co., et al., No. 5:96-CV0091).(1) You claim that the information is excepted from disclosure under sections 552.101, 552.103, 552.106, 552.107, and 552.111 of the Government Code. You also seek a decision from this office as to whether the Public Information Act (the "Act") applies at all to the information requested.(2) We have considered the arguments submitted by both GDHM and the requestor, and have reviewed the submitted representative sample of the information requested.(3)

We note that although the requestor submitted requests to both Senator Fraser and GDHM, this ruling addresses only the request to the senator. Although GDHM is acting as the senator's agent with respect to the Tobacco Litigation, it is not the senator's agent for the purposes of receiving public information requests under the Act. See Open Records Decision No. 576 (1990). Therefore, the request sent to GDHM does not constitute a valid request for the purposes of the Act.

Senator Fraser also asserts that the request for documents in his possession does not require that he seek documents owned by him or to which he has a right of access but that are in the possession of GDHM. The Act does not ordinarily require a governmental body to obtain information from another entity, so long as the entity does not hold the information on behalf of the governmental body. Open Records Decision No. 534 (1989). Additionally, prior decisions of this office have determined that a governmental body's information held by outside counsel is subject to required public disclosure. Open Records Decision Nos. 663 (1999), 499 (1988), 462 (1987). If, as in Open Records Decision Nos. 499 and 462, the requestor has specified that he is seeking information collected or maintained by the outside counsel for the governmental body, and the governmental body has a right of access to that information, the requested information held by outside counsel is subject to the Act. In this instance, we do not believe that the request, which did not specify information held by Senator Fraser's outside counsel, served to notify Senator Fraser that the requestor was seeking information held not only by his office, but also by GDHM. See Open Records Decision No. 663 (1999). Because the request does not specifically seek information held by GDHM for Senator Fraser, we do not address whether documents owned by the senator or to which he has a right of access but that are in the possession of GDHM are subject to required public disclosure under the Act.

As a final threshold issue, we address whether documents in GDHM's possession that were collected, assembled, or maintained by GDHM on behalf of Texans for Reasonable Legal Fees and Texans for Lawsuit Reform, and any other non-governmental organizations or individuals represented by GDHM, are subject to required public disclosure under the Act. We agree with Senator Fraser that the existence of a joint defense agreement between GDHM, a law firm representing an individual legislator in his official capacity, and the Office of the Attorney General, representing the State of Texas and the Governor, does not make GDHM an agent of the State with respect to the non-governmental entities. Therefore, GDHM's representation of Senator Fraser does not make the documents of other private, non-governmental clients of GDHM subject to the Act.

We next examine your claimed exceptions to required public disclosure under the Act. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Senator Fraser claims that some of the documents submitted are excepted from required public disclosure under section 552.101 in conjunction with Article I, Sections 8 and 27 of the Texas Constitution, and the First Amendment of the United States Constitution. In order to "ensure the rights of citizens of this state to petition state government," the Texas Legislature enacted chapter 306 of the Government Code. Gov't Code 306.004(a). This chapter provides that records of a member of the legislature that are composed exclusively of memoranda of communications with residents of this state and of personal information concerning the person communicating with the member are confidential. Gov't Code 306.003. Additionally, the public disclosure of all or part of a written or otherwise recorded communication from a citizen of this state received by a member of the legislature in his official capacity is prohibited unless the citizen expressly or by clear implication authorizes the disclosure, the communication is of the type expressly authorized by statute to be disclosed, or the official determines that disclosure does not constitute an unwarranted invasion of privacy. Gov't Code 306.004(a). However, section 306.004 does not apply to a communication to a member of the legislature from a public official or public employee acting in an official capacity. Gov't Code 306.004(b). We have marked examples of the types of communications that must be withheld as confidential under chapter 306.

Senator Fraser also argues that by the very language of the request for documents "related in any way" to the Tobacco Litigation, all documents requested "relate to litigation" and are, as such, excepted from required public disclosure under section 552.103 of the Government Code. 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 [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). Senator Fraser must meet both prongs of this test for information to be excepted under 552.103(a).

You inform this office that Senator Fraser is a party to both In re Senator Troy Fraser, No. 5-98-CV-0045, and In re: Private Counsel, No. 5:98-CV-270, two pending litigation matters in the United States District Court for the Eastern District of Texas, Texarkana Division. You also inform us that additional litigation is anticipated as a result of ongoing investigations related to the current litigation. Thus, Senator Fraser has met the first prong of the test for the applicability of section 552.103(a). After reviewing the submitted information, we find that Senator Fraser has also established the relatedness of most of the responsive documents to both the pending and anticipated litigation. Therefore, you may withhold most of the requested information pursuant to section 552.103. We have marked examples of the types of documents that Senator Fraser may withhold under section 552.103.

We note that generally, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to all opposing parties in both the pending and anticipated litigation is not excepted from disclosure under section 552.103(a), and must be disclosed. Further, the applicability of section 552.103(a) ends once the pending and anticipated litigation have concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Should you receive another request for this information, and the status of the litigation has materially changed, you should request another decision from this office.

Senator Fraser also claims that some of the requested information is excepted under section 552.106 of the Government Code. Section 552.106 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. We have marked those portions of the submitted information that you may withhold under section 552.106 of the Government Code.

In summary, legislative communications from citizens of this state must be withheld under section 552.101 and chapter 306 of the Government Code. We have marked examples of drafts and working papers involved in the preparation of legislation that may be withheld under section 552.106 of the Government Code. Senator Fraser and GDHM may withhold the rest of the submitted information under section 552.103 of the Government Code. Because we find sections 552.101, 552.103, 552.106, and 552.022 dispositive, we do not address your other claimed exceptions.

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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/nc

Ref: ID# 137361

Encl. Submitted documents

cc: Mr. Lou DuBose
Texas Observer
307 W. 7th Street
Austin, Texas 78701
(w/o enclosures)


 

Footnotes

1. You inform this office that the requestor is not seeking the release of any publicly filed court documents or materials that are in the public domain due to previous publication.

2. As a threshold issue, you seek a determination of whether Senator Fraser, in his capacity as an individual legislator, is a "governmental body" subject to the Act. Section 552.003(1)(A)(i) of the Government Code defines a "governmental body" to mean:

a board, commission, department, committee, institution, agency, or office that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members.

We believe that Senator Fraser's office clearly falls within the meaning of "governmental body," as defined in section 552.003(1)(A)(i), as an office that is within the legislative branch of state government and that is directed by an elected member, Senator Fraser. However, Senator Fraser, as an individual person, is not a governmental body subject to the Act. But see Open Records Decision No. 648 (1996) (information falling within the scope of chapter 306 of the Government Code may be released only as that chapter provides and does not fall within the scope of chapter 552 of the Government Code).

3. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information from that submitted to this office.
 

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