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April 17, 2000

Ms. Katherine Minter Cary
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548

OR2000-1509

Dear Ms. Cary:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134203.

The Office of the Attorney General (the "attorney general") received a request for the following four categories of information:

  • The nature and resolution of all cases and complaints referred to the Consumer Protection Division . . . in the last five (5) years involving heir-finders attempting to charge fees in excess of the statutory ten percent limit contained in [section 74.507 of the Texas Property Code];
  • The nature and resolution of all cases and complaints referred to the Consumer Protection Division . . . in the last five (5) years accusing heir-finders of having violated the Texas Deceptive Trade Practices Act and Consumer Protection Act[];
  • The nature and resolution of all cases and complaints ever referred to the Consumer Protection Division [against a particular probate research firm]; and
  • Any document ever produced by the Office of the Attorney General interpreting any provision of [section 74.507 of the Texas Property Code].

You claim that the requested information is excepted from disclosure under sections 552.107 and 552.111 of the Government Code. We have considered the claimed exceptions and have reviewed the responsive documents which you have marked as Exhibits 2 through 5.

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. Id. at 5. 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. Section 552.107(1) does not protect purely factual information. Id. After reviewing your arguments and the submitted documents, we find that Exhibits 2 through 5 reveal an attorney's legal opinion or advice. Accordingly, the attorney general may withhold Exhibits 2 through 5 in their entirety based on section 552.107(1). Because section 552.107 is dispositive, we do not address your argument under section 552.111 at this time.

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,

Kathryn S. Knechtel
Assistant Attorney General
Open Records Division

KSK/ljp

Ref: ID# 134203

Encl. Submitted documents

cc: Mr. Kenneth Falkenstein
Piliero, Mazza & Pargament, PLLC
Attorneys at Law
888 17th Street, N.W., Suite 1100
Washington, D.C. 20006
(w/o enclosures)


 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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