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September 27, 2000

Ms. Sarajane Milligan
Assistant County Attorney
Harris County
1019 Congress, 15th Floor
Houston, Texas 77002-1700

OR2000-3714

Dear Ms. Milligan:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 139447.

The Harris County Attorney's Office (the "county attorney") received a request for information concerning a particular case. You state that the documents maintained in the county attorney's files that are also filed with a public court have been released to the requestor. You claim that the remainder of the requested information is excepted from disclosure under sections 552.103 and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information, Exhibit C.

Initially, we note that Exhibit C contains information that falls within the purview of section 552.022(a)(3). Section 552.022(a)(3) provides that information in an account, voucher or contract relating to the receipt or expenditure of public or other funds by a governmental body is not excepted from required disclosure unless the information is confidential under other law. You do not inform this office, nor are we aware of a law that would make the information confidential. We also find that sections 552.103 and 552.111 are discretionary exceptions, and not "other law" for purposes of section 552.022.(1) Therefore, the county must release the information under section 552.022(a)(3). We have marked the information to be released to the requestor.

First, we address your contention that all the information submitted to this office for review is protected as attorney work product. In Open Records Decision No. 647 (1996), this office held that a governmental body may withhold information under section 552.111 of the Government Code if the governmental body can show 1) that the information was created for civil trial or in anticipation of civil litigation under the test articulated in National Tank v. Brotherton, 851 S.W.2d 193 (Tex. 1993), or after a civil lawsuit is filed, and (2) that the work product consists of or tends to reveal an attorney's "mental processes, conclusions, and legal theories." Open Records Decision No. 647 at 5 (1996). The work product doctrine is applicable to litigation files in criminal as well as civil litigation. Curry v. Walker, 873 S.W.2d 379, 381 (Tex. 1994) (citing United States v. Nobles, 422 U.S. 225, 236 (1975)). In Curry, the Texas Supreme Court held that a request for a district attorney's "entire file" was "too broad" and, citing National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458, 460 (Tex. 1993), held that "the decision as to what to include in [the file] necessarily reveals the attorney's thought processes concerning the prosecution or defense of the case." Curry, 873 S.W.2d at 380.

You state that the requestor is essentially asking for the county attorney's entire file on this case. After reviewing the documents and your arguments, we agree that the county attorney may withhold all of the requested information pursuant to section 552.111 of the Government Code as attorney work product.

Because we are able to make a determination under section 522.111 of the Government Code we need not address your other claimed exception.

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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/pr

Ref: ID# 139447

Encl. Submitted documents

cc: Ms. Aileen Dale
Village News
5160 Spruce
Bellaire, Texas 77401
(w/o enclosures)


 

Footnotes

1. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 592 at 8 (1991) (governmental body may waive section 552.104, information relating to competition or bidding), 549 at 6 (1990) (governmental body may waive informer's privilege), 522 at 4 (1990) (discretionary exceptions in general). Discretionary exceptions therefore do not constitute "other law" that makes information confidential.
 

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