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October 14, 1999

Ms. Heather Silver
Assistant City Attorney
City of Dallas
City Hall
Dallas, Texas 75201

OR99-2931

Dear Ms. Silver:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 128258.

The City of Dallas (the "city") received a request for information relating to a sexual harassment claim involving two specific individuals. You state that a claim file involving the named parties does not exist. However, you have released some documents from the files you believe the requestor is referring. As for the remaining documents, you claim these records are excepted from disclosure under sections 552.107 and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted sample information.(1)

First, you contend that the documents submitted as Exhibits B and D constitute attorney work product. A governmental body may withhold attorney work product from disclosure under section 552.111 if it demonstrates that the material was 1) created for trial or in anticipation of civil litigation, and 2) consists of or tends to reveal an attorney's mental processes, conclusions and legal theories. Open Records Decision No. 647 (1996). You have submitted documentation to demonstrate that the documents in Exhibits B and D were created for litigation. You have, therefore, established the applicability of the first prong of the work product test.

The second prong of the work product test requires the governmental body to show that the documents at issue tend to reveal the attorney's mental processes, conclusions and legal theories. You state that the materials at issue reveal the mental processes, conclusions and theories of the assistant city attorneys handling this case and others. Having reviewed your arguments and the documents at issue, we conclude that Exhibits B and D may be withheld as attorney work product.

You also seek to withhold Exhibit E under section 552.107. Section 552.107(1) excepts information that an attorney 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). 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. Id. at 3. In addition, basically factual communications from attorney to client, or between attorneys representing the client, are not protected. Id. We agree that Exhibit E contains an attorney's legal advice or opinion, and, therefore, may be withheld from public disclosure under section 552.107(1).

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 on as a previous determination regarding any other records. If you have any questions regarding this ruling, please contact our office.

Sincerely,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/ch

Ref: ID# 128258

Encl. Submitted documents

cc: Ms. Paulette Mahome
P.O. Box 170044
Dallas, Texas 75217
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision No. 499 (1988), 497 (1988) (where requested documents are numerous and repetitive, governmental body should submit representative sample; but if each record contains substantially different information, all must be submitted). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
 

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