ATTORNEY GENERAL OF TEXAS
December 21, 2004
Mr. J. Kevin Patteson
Dear Mr. Patteson:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 215317.
The Office of the Governor (the "governor") received a request for information related to the application for a Texas Enterprise Fund grant submitted by Vought Aircraft Industries, Inc. ("Vought"), to include expense reports, donor records, reimbursements, invoices, checks, memoranda, annual reports, bank receipts, ledgers, bank statements, and e-mails. You state that some responsive information has been released to the requestor. You claim that the remaining information is excepted from disclosure under sections 552.104, 552.107, 552.110, 552.111, 552.131, and 552.137 of the Government Code. You also state that, pursuant to section 552.305 of the Government Code, you have notified Vought of the request and of the company's right to submit arguments to this office as to why the information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (determining that statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under Public Information Act in certain circumstances). We have received correspondence from counsel for Vought. We have considered all of the submitted arguments and reviewed the submitted information.
We begin by addressing the e-mail addresses you state you have redacted from the documents you have provided to the requestor. You seek to withhold the e-mail addresses under section 552.137 of the Government Code, which provides in part:
(a) Except as otherwise provided by this section, an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter.
. . .
(c) Subsection (a) does not apply to an e-mail address:
. . .
(3) contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or information relating to a potential contract, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract[.]
Gov't Code § 552.137(a), (c). Section 552.137 excepts certain e-mail addresses of members of the public who have not affirmatively consented to the release of the e-mail addresses. Section 552.137(c), however, provides conditions under which e-mail addresses of members of the public are not excepted from disclosure. The e-mail addresses at issue here were provided to the governor in the course of negotiating the terms of a contract or potential contract. We therefore find that the e-mail addresses you have marked in the documents submitted Exhibit F are not excepted from disclosure under section 552.137(a) and may not be withheld on that basis.
We next address your claim under section 552.104 of the Government Code with respect to the information submitted as Exhibits A through C. Section 552.104 excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." The protections of section 552.104 serve two purposes. One purpose is to protect the interests of a governmental body by preventing one competitor or bidder from gaining an unfair advantage over others in the context of a pending competitive bidding process. Open Records Decision No. 541 (1990). The other purpose is to protect the legitimate marketplace interests of a governmental body when acting as a competitor in the marketplace. Open Records Decision No. 593 (1991). In both instances, the governmental body must demonstrate actual or potential harm to its interests in a particular competitive situation. See Open Records Decision Nos. 593 at 2 (1991), 463 (1987), 453 at3 (1986). A general allegation of a remote possibility of harm is not sufficient to invoke section 552.104. Open Records Decision No. 593 at 2. Upon review of your arguments and the submitted information, we find you have sufficiently demonstrated the applicability of section 552.104 in this instance. Thus, we determine the governor may withhold Exhibits A through C from disclosure pursuant to section 552.104 of the Government Code.(1)
Next, you contend that the information submitted as Exhibit D is excepted from disclosure under section 552.107 of the Government Code. Section 552.107(1) excepts from disclosure information protected by the attorney-client privilege. When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege in order to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate that the information constitutes or documents a communication. Id. at 7. Second, the communication must have been made "for the purpose of facilitating the rendition of professional legal services" to the client governmental body.(2) Tex. R. Evid. 503(b)(1). Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives.(3) Tex. R. Evid. 503(b)(1)(A), (B), (C), (D), (E). Thus, a governmental body seeking to establish that a communication is protected by the attorney-client privilege must inform this office of the identity and capacity of each individual involved in the communication. Finally, the attorney-client privilege applies only to a communication that is confidential. Id. 503(b)(1). A confidential communication is a communication that was "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." Id. 503(a)(5).
Whether a communication meets the definition of a confidential communication depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.--Waco 1997, no writ). Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained. Section 552.107(1) of the Government Code generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein). You indicate that Exhibit D consists of confidential communications between the governor's staff and attorneys made for the purpose of providing legal services to the governor, and you indicate that the confidentiality of this information has been maintained. Based on your representations and our review, we determine that the information in Exhibit D may be withheld under section 552.107(1) of the Government Code.
Finally, you seek to withhold the information in Exhibit E pursuant to section 552.111 of the Government Code. Section 552.111 excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the deliberative or policymaking processes of the governmental body. Open Records Decision No. 615 at 5-6 (1993). Furthermore, the preliminary draft of a policymaking document that has been released or is intended for release in final form is excepted from disclosure in its entirety under section 552.111 because such a draft necessarily represents the advice, recommendations, or opinions of the drafter as to the form and content of the final document. Open Records Decision No. 559 at 2 (1990). An agency's policymaking functions, however, do not encompass internal administrative or personnel matters; disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. Open Records Decision No. 615 at 5-6 (1993). Additionally, section 552.111 does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. See Arlington Indep. Sch. Dist. v. Texas Atty. Gen., 37 S.W.3d 152, 160 (Tex. App.-Austin 2001, no writ); Open Records Decision No. 615 at 4-5. You state that Exhibit E consists of draft versions of policymaking documents and internal communications reflecting the advice, opinions, and recommendations of the governor's staff concerning policy matters. Based on your representations and our review, we have marked information in Exhibit E that is excepted from disclosure under section 552.111 and may be withheld. The remainder of the information in Exhibit E, however, consists of purely factual information or information that does not document or reflect the governor's internal communications concerning policy matters. We therefore find the remainder of Exhibit E may not be withheld under section 552.111.
In summary, the governor may withhold the information submitted as Exhibits A through C pursuant to section 552.104 of the Government Code. Exhibit D may be withheld under section 552.107(1) of the Government Code as information protected by the attorney-client privilege. We have marked the information in Exhibit E that may be withheld pursuant to section 552.111 of the Government Code. The remainder of the submitted information must be released.
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 thirty calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within ten 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 ten 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 ten 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); Tex. Dep't of Pub. 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 Hadassah Schloss at the Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within ten calendar days of the date of this ruling.
David R. Saldivar
c: Mr. Dave Michaels
Mr. Kevin McGlinchey
Mr. James M. Summers
1. Based on this finding, we do not reach your other claimed exceptions concerning this information.
2. The privilege does not apply when an attorney or representative is acting in a capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.--Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in a capacity other than that of attorney). Because government attorneys often act in capacities other than that of professional legal counsel, including as administrators, investigators, or managers, the mere fact that a communication involves an attorney for the government does not demonstrate this element.
3. Specifically, the privilege applies only to confidential communications between the client or a representative of the client and the client's lawyer or a representative of the lawyer; between the lawyer and the lawyer's representative; by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; between representatives of the client or between the client and a representative of the client; or among lawyers and their representatives representing the same client. See Tex. R. Evid. 503(b)(1)(A), (B), (C), (D), (E); see also id. 503(a)(2), (a)(4) (defining "representative of the client," "representative of the lawyer").