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September 19, 2000

Mr. William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
P.O. Box 12157
Austin, Texas 78711

OR2000-3612

Dear Mr. Kuntz:

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# 141100.

The Texas Department of Licensing and Regulation (the "department") received a request for information pertaining to certain complaints filed with the department. You contend that one of the documents contained in the files of those complaints is excepted from disclosure under sections 552.107 and 552.111 of the Government Code. You have released all other responsive information. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.107(1) excepts information that an attorney 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. Open Records Decision No. 574 at 5 (1990); Tex. Disciplinary R. Prof'l Conduct 1.05(a), reprinted in Gov't Code, tit. 2, subtit. G, app. A (Vernon's 1998); Tex. R. Evid. 503(b)(1).

The document in question is an intra-agency memorandum from the department's prosecutor to a department investigator that contains legal advice and opinion regarding a particular case. It is therefore excepted from disclosure under section 552.107 of the Government Code. In this case, we need not consider whether the memorandum is excepted under section 552.111 because section 552.107 is dispositive.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/SPA/ljp

Ref: ID# 141100

Encl. Submitted documents

cc: Ms. Mary Jane Messinger
Texas Cool-Tech
7000 Cameron Road Bldg. #2
Austin, Texas 78753
(w/o enclosures)


 

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