|Office of the Attorney General - State of Texas
November 16, 2000
Mr. Christopher B. Gilbert
Dear Mr. Gilbert:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 141335.
The Hamshire-Fannett Independent School District (the "district"), which you represent, received a request for a copy of legal bills for a specified time period and the time frame of the January 31, 2000, billing. You state that certain portions of the requested legal bills have already been released to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.107 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
A bill for attorney's fees is subject to disclosure under section 552.022(a) of the Public Information Act (the "Act"). Section 552.022(a) provides in relevant part:
(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:
. . .
(16) information that is in a bill for attorney's fees and that is not privileged under the attorney-client privilege[.]
Gov't Code § 552.022(a)(16). You claim that portions of the bill are protected under the informer's privilege incorporated in section 552.101 of the Government Code. The informer's privilege facet of section 552.101 of the Government Code serves to protect the flow of information to a governmental body; it does not serve to protect a third person. Open Records Decision No. 549 at 5 (1990). Thus, unlike other section 552.101 assertions, the informer's privilege aspect of section 552.101 may be waived by the governmental body. Id. at 6. As such, an assertion of the informer's privilege is a discretionary exception under the Act that does not constitute other law that makes information expressly confidential for purposes of section 552.022.(1) See also Open Records Decision No. 575 (1990) (discovery privileges in general do not make information confidential under section 552.101). We therefore conclude that none of the information you have highlighted in blue is excepted from disclosure pursuant to the informer's privilege.
Next, we address whether the attorney-client privilege applies to the requested information. Section 552.107(1) of the Government Code protects information coming within the attorney client privilege. The attorney general explicitly found that a governmental body may withhold information in an attorney fee bill only to the extent that the information reveals client confidences or the attorney's legal advice. See Open Records Decision No. 589 (1991). Moreover, in Open Records Decision No. 589, the attorney general determined that the "attorney-client privilege" exception did not protect a requested list of "phone calls and conferences regarding a particular matter" or indications that an attorney had reviewed documents relevant to the attorney's representation of the government body.
You have highlighted in yellow the information that you believe is excepted from disclosure pursuant to the attorney-client privilege. You contend that this highlighted information describes the client's request for advice and the advice rendered by the attorney. You state that the yellow highlighted portions of the bills are privileged because they reveal advice and strategy with respect to certain disputes and efforts to comply with certain laws. We have marked the portions of the yellow highlighted legal bills that we find you have not demonstrated consist of client confidences or attorney advice. The district must release these portions of the bills. The district may withhold the remainder of the yellow highlighted information from required public disclosure pursuant to section 552.107(1).
In summary, the district may withhold some portions of the yellow highlighted legal bills pursuant to the attorney-client privilege. The district must release the remainder of the submitted legal bills.
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.
Noelle C. Letteri
Ref: ID# 141335
Encl. Submitted documents
cc: Mr. Samuel Laday
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 (1989) (discretionary exceptions in general). Discretionary exceptions therefore do not constitute "other law" that makes information confidential.
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