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August 19, 1999

Mr. Paul Sarahan, Director
Litigation Division
Texas Natural Resource Conservation Commission
P.O. Box 13087
Austin, Texas 78711-3087

OR99-2350

Dear Mr. Sarahan:

You have asked whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 126729.

The Texas Natural Resource Conservation Commission (the "TNRCC") received a request for information "concerning the investigations, studies, tests, analyses, findings, plans, orders or other entries regarding contamination at the Mobile Oil Off-Shore Texas Site in Texas City, Texas." You assert that the records at issue are protected from disclosure under sections 552.107(1) and 552.111 of the Government Code. You submitted to this office for review records that you have marked to show the exceptions to disclosure that you contend are applicable.

Section 552.107(1) excepts from disclosure communications that reveal client confidences or the attorney's legal opinion or advice. Open Records Decision Nos. 589 at 1 (1991), 574 at 3 (1990), 462 at 9-11 (1987). Section 552.107(1) does not except from disclosure a factual recounting of events or the documentation of calls made, meetings attended, and memos sent. Open Records Decision No. 574 at 5 (1990). We have reviewed the information for which you assert section 552.107(1) and have marked the information that we agree is protected under section 552.107(1).

Section 552.111 excepts interagency and intraagency communications from disclosure only to the extent that they contain advice, opinion, or recommendation for use in the governmental body's policymaking process. Open Records Decision No. 615 at 5 (1993). Section 552.111 excepts from required public disclosure preliminary drafts of documents related to policymaking matters, since drafts represent the advice, opinion, and recommendation of the drafter as to the form and content of the final documents. See Open Records Decision No. 559 (1990). However, section 552.111 does not except from disclosure purely factual information.

In Open Records Decision No. 647 (1996), this office determined that section 552.111 also excepts from disclosure attorney work product that was created in anticipation of civil litigation and consists of or tends to reveal an attorney's mental processes, conclusions, and legal theories. Open Records Decision No. 647 (1996). If a requestor asks for specific documents, the governmental body has the burden of explaining to this office how (1) the information was created in anticipation of civil litigation under the test set forth in National Tank v. Brotherton, 851 S.W.2d 193, 200 (Tex. 1993), and (2) the information at issue consists of or tends to reveal the attorney's mental processes, conclusions, and legal theories. Open Records Decision No. 647 (1996). We have reviewed the information that you contend is excepted from disclosure under section 552.111 and have marked the information that is protected under section 552.111.

You may withhold the information that we have marked as protected from disclosure. The remaining information must be released. We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Ruth H. Soucy
Assistant Attorney General
Open Records Division

RHS/ch

Ref: ID# 126729

Encl. Submitted documents

cc: Ms. Angela Lam
Lord, Bissell & Brook
115 South La Salle Street
Chicago, Illinois 60603
(w/o enclosures)


 

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