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February 24, 2000

Mr. Randel B. Gibbs
Law Offices of Robetrt E. Luna, P.C.
4411 North Central Expressway
Dallas, Texas 75205

OR2000-0676

Dear Mr. Randel Gibbs:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 132467.

The DeSoto Independent School District (the "district"), which you represent, received a request for a list of payments the district made to outside counsel, the reasons for the payments, and the district's funds or accounts from which each payment was drawn. You claim that the requested information is excepted from disclosure under sections 552.103 and 552.107 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Before considering the exceptions you claim except the requested information from public disclosure, we will address your assertion that no documents exist pertaining to the list of payments, or the district's funds or accounts from which each payment was drawn. The Public Information Act does not require a governmental body to prepare new information in response to open records requests. Open Records Decisions Nos. 452 (1986), 342 (1982). Furthermore, the Public Information Act does not ordinarily require a governmental body to obtain new information to comply with a request. Open Records Decision 561 (1990). The Act only applies to information already in existence. In this instance it appears the district does not have the requested information. Therefore, the district need not create any new documents to respond to the open records request.

However, the district does have and submitted the total legal bills with all the legal services described in them, as the district feels these bills are responsive to the request. The district contends that these submitted documents are excepted from public disclosure under sections 552.103 and 552.107 of the Government Code.

First, we address your section 552.103 claim. Section 552.022(a)(16)(1) of the Government Code states that information in an attorney fee bill is not excepted from disclosure under the Public Information Act unless it is expressly confidential under other law or privileged under the attorney-client privilege. Section 552.103 is not other law that makes the information confidential; therefore, you may not withhold the information under section 552.103.

Next, we address whether the attorney-client privilege applies to the requested information.

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.

Gov't Code 552.107(1). 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. Id. at 5. Section 552.107(1) does not protect purely factual information. Id. The attorney general explicitly found that a governmental body may withhold information in an attorney fee bill only the extent that the information reveals client confidences or the attorney's legal advice. See Open Records Decision No. 589 (1991) Morever, 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. We have reviewed the submitted documents and find the documents do not appear to contain either legal opinion or advice or client confidences. Therefore, as the attorney fee bills do not contain a client confidence or an attorney's legal advice, the documents may not be withheld from public disclosure under section 552.107 and 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 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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

ncl/nc

Ref: ID# 132467

Encl. Submitted documents

cc: Shannon Brown
P.O. Box 972
Lancaster, Texas 75146
(w/o enclosures)


 

Footnotes

1. Section 55.022 of the Government Code was amended by the Seventy-sixth Legislature which included the addition of 552.022(a)(16). Act of May 25, 1999, 76th Leg., R.S., ch. 1391, 5, 1999 Tex. Gen.

Laws 4500, 4501-02.
 

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