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January 31, 2000

Ms. Amy L. Sims
Assistant City Attorney
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457

OR2000-0313

Dear Ms. Sims:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131672.

The City of Lubbock (the "city") received a request for information since June 1991 regarding a specified address. You explain the request pertains to a case that was heard before the city's Structural Standards Commission, and that the city has released some information responsive to the request. You have provided for our review additional information, marked as exhibit "B," which you assert is excepted from public disclosure under sections 552.101 and 552.107 of the Government Code. We have reviewed the information you have submitted and considered the exceptions you assert.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." You make no arguments in support of withholding the information under this exception, nor do we find in the submitted documents any information implicated by this provision. The information is thus not excepted from disclosure by section 552.101.

Section 552.107(1) excepts information from disclosure if it is information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct. This exception does not apply to all client information held by a governmental body's attorney; rather, it excepts from public disclosure only "privileged information," i.e. communications made to the attorney in confidence and in furtherance of rendering professional services, or information that reveals the attorney's legal opinion or advice. Open Records Decision Nos. 589 at 1 (1991), 574 at 3 (1990), 462 at 9-11(1987). Information gathered by an attorney as a fact-finder, purely factual information, and the factual recounting of events including the documentation of calls made, meetings attended, and memos sent, are not excepted from disclosure by section 552.107(1). Open Records Decision No. 574 (1990). Section 552.107 may except from disclosure notes in an attorney's client file if they contain confidences of the client or reveal the opinions, advice, or recommendations that have been made or will be made to the client or associated attorneys. Open Records Decision No. 574 at 6 (1990). In asserting section 552.107, you argue:

Many of the notations in these documents include the volume and page number of documents found in the real property records of the county in which the property is located. These documents are listed in the title summary and "run" sheets. These documents are meant to show the instruments that affect title to the property at issue. The inclusion of this information, which at first blush appears merely to be factual, in and of itself is an opinion of the [c]ity's attorney. As the real property records contain thousands of such documents, these documents show the attorney's opinion as to which documents affect the title to the property.

After considering your arguments and examining the information at issue, we agree that the memoranda and notes in exhibit "B" are excepted from required disclosure because release of this information would reveal the mental impressions, legal opinion or advice rendered by an attorney to a client. We have marked with blue flags the documents you may withhold. The remaining documents, each of which is entitled "Title Search Summary Sheet," appear to consist entirely of facts that clearly were obtained from public records. You explain this information was gathered by one or more law clerks under the direction of a city attorney. We accordingly find the situation here is analogous to one in which the attorney is acting as a fact-finder. Such information is not excepted from disclosure by section 552.107. With the exception of the documents we have marked, we conclude the submitted information must be released to the requestor.

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).

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,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/jc

Ref: ID# 131672

Encl. Submitted documents

cc: Ms. Carmen Liu
1303 26th Street
Lubbock, Texas 79405
(w/o enclosures)


 

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