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October 12, 2000

Ms. Tenley A. Aldredge
Assistant County Attorney
Travis County
314 West 11th, Suite 300
P. O. Box 1748
Austin, Texas 78767

OR2000-3950

Dear Ms. Aldredge:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 140087.

Travis County (the "county") received a request for information regarding previous open records requests. Specifically, the requestor asks for the following information:

1) all information regarding ID# 137537 (as always, no duplicates, redundancies, records we already indisputably possess, have requested separately, etc.)[;]

2) every previous failure or refusal to copy the requestor on your brief to the OAG [;]

3) the open records request letter in files which include, reference, or resulted in OR99-3489 and OR99-1481 [; and]

4) all previous instances of stating to the requestor or arguing to the OAG as the County did in these two ruling numbers.

You state that the county has no information responsive to item numbers two and four of the request. You also state that a portion of the responsive information will be provided to the requestor. You claim that the information you have submitted for our review is excepted from disclosure under sections 552.107 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

We begin by addressing item number three of the request wherein the requestor asks for "the open records request letter in files which include, reference, or resulted in" Open Records Letter Nos. 99-3489 (1999) and 99-1481 (1999). The majority of information you have submitted in response to this item of the request is non-responsive to the request, and, therefore, may be withheld. For your reference, we have marked this information. We will address the requests for information associated with these files only.

We note that you have failed to submit the open records request for information associated with Open Records Letter No. 99-1481 (1999). Pursuant to section 552.301(e)(1)(D), a governmental body is required to submit to this office within fifteen business days of receiving an open records request a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Thus, you have failed to comply with section 552.301(e) with regard to this portion of the request. Pursuant to section 552.302 of the Government Code, a governmental body's failure to submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code 552.302); Open Records Decision No. 319 (1982). The exceptions you claim, sections 552.107 and 552.108, do not provide compelling reasons for withholding the information. See, e.g., Open Records Decision Nos. 150 (1977) ("compelling reason" for withholding information is if information is made confidential by another source of law or affects third party interests), 630 (1994) (protection of attorney-client privilege may be waived by governmental body). Accordingly, you must release the open records request for information associated with Open Records Letter No. 99-1481 (1999).

You have submitted the open records request for information associated with Open Records Letter No. 99-3489 (1999). Therefore, we will consider your arguments relating to this document in conjunction with your claims regarding item number one below.

In item number one the requestor asks for all information regarding ID# 137537. ID# 137537 corresponds to Open Records Letter No. 2000-2873 (2000) in which this office concluded that certain records could be withheld pursuant to section 552.108(a)(2) of the Act. You indicate that a portion of the information responsive to item number one of the request was excepted from disclosure in Open Records Letter No. 2000-2873 (2000). After reviewing the information, we conclude that a portion of the information appears to have been the subject of that prior ruling. Thus, any information which was allowed to be withheld under the former ruling may be withheld in accordance with that ruling.

You also assert that information responsive to item number one is excepted under section 552.107. 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. Open Records Decision No. 574 at 3 (1990). In addition, purely factual communications from attorney to client, or between attorneys representing the client, are not protected. Id. We agree that a portion of the information is excepted under section 552.107.

The remaining information submitted in response to item number one consists of the county's request for a decision which was submitted to this office in response to the request for information addressed in Open Records Letter No. 2000-2873 (2000). Ordinarily we consider a governmental body's communications to this office, stating why the requested information should be withheld from public disclosure, to be available to the public. See Open Records Decision No. 459 (1987). You assert, however, that the information is excepted from disclosure pursuant to section 552.107 for the following reasons:

Many of the enclosed records are excepted from disclosure under Section 552.107 of the [Act] . . . because they constitute communications that document client confidences or legal advice or opinion communicated by and between [the Attorney General's Office] and the County Attorney's Office, which, for purposes of requests for opinions under the [Act], is the [Attorney General's] client. . . . .

The requested files contain correspondence between our office and your office regarding records requested by members of the public from Travis County governmental entities as well as the legal arguments upon which this office based its efforts to protect the interests of its client agencies with respect to such records. All such correspondence was made for the purpose of facilitating advice from the [Attorney General's] Office to the Travis County Attorney's Office.

We note, however, that you have not submitted any information which can be classified as attorney-client communications between the county and the Office of the Attorney General. Rather, the information at issue here is information which the county was required to submit pursuant to section 552.301 of the Government Code as part of the county's request for a decision in Open Records Letter No. 2000-2873 (2000). In his rendition of a decision under the Act, the Attorney General acts in a quasi-judicial capacity, rather than as an attorney to a governmental body in an attorney-client role. See Gov't Code 552.306. Thus, the county's request for a decision which was submitted to this office in response to the request for information in Open Records Letter No. 2000-2873 (2000), as well as the open records request for information associated with Open Records Letter No. 99-3489 (1999), which you have submitted in response to item number three, are not excepted from disclosure pursuant to section 552.107.

In summary, a portion of the information may be withheld as non-responsive to the request. A portion of the information may be withheld pursuant to section 552.107 of the Government Code. Information which was excepted from disclosure in Open Records Letter No. 2000-2873 (2000) may be withheld in accordance with that ruling. The county must release the open records requests for information associated with Open Records Letter Nos. 99-1481 (1999) and 99-3489 (1999), as well as the county's request for a decision which was submitted to this office in response to the request for information addressed in Open Records Letter No. 2000-2873 (2000). For your reference, we have marked the information accordingly.

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,

Julie Reagan Watson
Assistant Attorney General
Open Records Division

JRW/pr

Ref: ID# 140087

Encl. Marked documents

cc: Mr. Stephen N. Lisson
Initiate!!
P. O. Box 2013
Austin, Texas 78768-2013
(w/o enclosures)


 

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