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April 13, 2000

Ms. Kathleen F. Watel
Assistant City Attorney
Office of the City Attorney
P.O. Box 639966
San Antonio, Texas 78283-3966

OR2000-1468

Dear Ms. Watel:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134194.

The City of San Antonio (the "city") received a request for e-mailed communications related to an investigation into allegations made against the requestor.(1) You have submitted the responsive information to this office for review. You claim that the submitted information is excepted from disclosure under sections 552.107(1) and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted 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. 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 that reveal 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). In this case, the communications addressed to the requestor are not "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client" and therefore are not privileged. See Tex. R. Evid. 503. Other than the communications with the requestor, we find that the submitted information may be withheld under section 552.107 of the Government Code.

As section 552.111 generally protects only advice, opinion, and recommendations, any memorandum information protection under section 552.111 will usually be no greater or less than the protection offered under section 552.107. See Open Records Decision No. 574 at 2 (1990). We do not believe that any of the submitted information not protected by section 552.107 is protected by section 552.111. See City of Garland v. Dallas Morning News, 43 Tex. Sup. Ct. J. 303 (Jan. 13, 2000)(section 552.111 protects only those agency communications or parts of agency communications that relate to the agency's policymaking). We have marked the submitted information to indicate that which must be released ( three pages) and that which may be withheld.

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 Jay Burns
Assistant Attorney General
Open Records Division

MJB/nc

Ref: ID# 134194

Encl Submitted documents

cc: Mr. Steve Uncapher
Parks & Recreation Department
City of San Antonio
P.O. Box 839966
San Antonio, Texas 78283-3966
(w/o enclosures)


 

Footnotes

1. We note that the submitted materials include an earlier request, dated December 29, 1999. As no request for decision has been made to our office regarding the information responsive to the December 29, 1999 request, we assume that all such information has been released. Gov't Code 552.301, 302.
 

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