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June 26, 2000

Mr. Miles K. Risley
Senior Assistant City Attorney
City of Victoria
P. O. Box 1758
Victoria, Texas 77902-1758

OR2000-2431

Dear Mr. Risley:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 136789.

The City of Victoria (the "city") received a request for records relating to a former employee, including "his complete personnel file and all documents and materials related to his discharge." You have submitted records that the city claims 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 information you submitted.

Initially we note what would seem to be a disparity between the nature of the records specified by the requestor and the contents of the documents that the city has submitted and seeks to withhold. As you make no reference to any other responsive records that are held by the city, we assume that all such records have been released. See Gov't Code 552.301, 552.302. A governmental body that seeks to withhold requested information from public disclosure must do so in accordance with section 552.301 of the Government Code. Otherwise, section 552.221 of the Government Code requires that requested information be made available to the requestor promptly. See Gov't Code 552.221(a); see also Open Records Decision No. 664 (2000) (construing Gov't Code 552.221). Thus, if the city is in possession of, but has not yet released, any further personnel or other records that are responsive to the request, you must release those records immediately.(1)

You claim that the submitted documents are excepted from disclosure under section 552.107 of the Government Code. Section 552.107 provides in relevant part that information is excepted from required public 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). Although the scope of section 552.107(1) would appear to be co-extensive with that of rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, which prohibits an attorney from divulging "confidential information," this office has concluded that such an interpretation of rule 1.05 would be in potential conflict with the purposes of the Act. See Open Records Decision No. 574 at 4-5 (1990) (construing statutory predecessor to section 552.107(1)). Accordingly, this office has determined that section 552.107(1) protects only what rule 1.05 describes as "privileged" information, i.e., information that represents confidential communications between attorney and client. Id. at 5. "Unprivileged" information, as defined by rule 1.05, is not excepted from disclosure under section 552.107(1). Id. Thus, section 552.107(1) excepts from disclosure only factual information or requests for legal advice communicated by the client to the attorney and legal advice or opinion rendered by the attorney to the client or to an associated attorney in the course of rendering legal services to the client. Id. at 7-8. In this instance, you inform us that the submitted documents represent communications between the city attorney and other city officials. Based on your representations and our review of the documents in question, we find that a portion of the submitted information represents privileged communications between attorney and client that are excepted from disclosure under section 552.107(1). We have marked that information. The balance of the submitted information does not involve privileged matters that section 552.107(1) protects.

You also claim that the submitted information is excepted from disclosure under section 552.111 of the Government Code. Section 552.111 protects "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." Gov't Code 552.111. The purpose of section 552.111 is to protect from public disclosure advice, opinion, and recommendation used in the decisional process and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.-San Antonio 1982, no writ); Open Records Decision No. 538 at 1-2 (1990). In Open Records Decision No. 615 (1993), this office re-examined the statutory predecessor to section 552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We determined that section 552.111 excepts only those internal communications that consist of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. See Open Records Decision No. 615 at 5 (1993). A governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. Id.; see also City of Garland v. The Dallas Morning News, 43 Tex. Sup. Ct. J. 303 (Jan. 13, 2000) (holding that personnel-related communications not involving policymaking were not excepted from public disclosure under section 552.111). However, a governmental body's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). Additionally, section 552.111 does not protect facts and written observations of facts and events that are severable from advice, opinions, and recommendations. See Open Records Decision No. 615 at 5 (1993). But, if the factual information is so inextricably intertwined with material involving advice, opinion, or recommendation as to make severance of the factual data impractical, that information also may be withheld under section 552.111. See Open Records Decision No. 313 at 3 (1982). In this instance, the submitted documents pertain solely to a specific personnel matter. Therefore, none of the submitted information is excepted from disclosure under section 552.111.

In summary, any other responsive information that the city has not sought to withhold in accordance with section 552.301 of the Government Code must be made available to the requestor immediately. A portion of the submitted information is excepted from disclosure under section 552.107. The balance of the submitted information is not protected under either section 552.107 or section 552.111 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,

James W Morris III
Assistant Attorney General
Open Records Division

JWM/ljp

Ref: ID# 136789

Encl. Submitted documents

cc: Mr. Bob D. Brown
Houston, Marek & Griffin, L. L. P.
Attorneys at Law
P.O. Box 2329
Victoria, Texas 77902
(w/o enclosures)


 

Footnotes

1. We also note that the requestor may be an attorney representing the former employee whose personnel records are requested. If that is the case here, then as the former employee's authorized representative the requestor has a special right of access, beyond the right of the general public, to records that relate to the requestor's client and that are protected from public disclosure by laws intended to protect his client's privacy interests. See Gov't Code 552.102(a), 552.023(a); Open Records Decision No. 481 at 5 (1987) (stating that where an individual asks a governmental body to release information concerning only that individual, no common law privacy interest arises, and the individual is entitled to that information if the governmental body can claim no other basis for denying access to it).
 

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