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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 18, 2002

Mr. Phillip Marzec
Escamilla & Poneck, Inc.
P. O. Box 200
San Antonio, Texas 78291-0200

OR2002-7246

Dear Mr. Marzec:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173866.

The Brownsville Independent School District (the "district"), which you represent, received a request for copies of invoices. You state that the majority of the requested information is being provided to the requestor. You claim, however, that the remaining requested information is excepted from disclosure pursuant to sections 552.022, 552.103, 552.107, and 552.111 of the Government Code.(1) We have considered the exceptions you claim and have reviewed the submitted information.

Initially, we note that the information at issue is subject to section 552.022 of the Government Code. Section 552.022 provides that

the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

. . .

(16) information that is in a bill for attorney's fees and that is not privileged under the attorney-client privilege[.]

Gov't Code 552.022(a)(16). Thus, information contained in attorney fee bills must be released pursuant to section 552.022(a)(16) unless it is expressly confidential under other law. Although the district claims that the remaining requested information is excepted from disclosure under sections 552.103 and 552.107 of the Government Code, we note that these exceptions to disclosure are discretionary exceptions under the Act that protect the governmental body's interests and may be waived.(2) Accordingly, we conclude that the district may not withhold any portion of the remaining requested information under sections 552.103 or 552.107 of the Government Code. We note, however, that the Texas Supreme Court recently held that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." See In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). Therefore, we will determine whether any portion of the remaining requested information is confidential under rule 503 of the Texas Rules of Evidence. See Open Records Decision No. 676 at 6 (2002) ("appropriate law for a claim of attorney-client privilege for section 552.022 information is Texas Rule of Evidence 503").

Rule 503(b)(1) provides:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer;

(B) between the lawyer and the lawyer's representative;

(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;

(D) between representatives of the client or between the client and a representative of the client; or

(E) among lawyers and their representatives representing the same client.

Tex. R. Evid. 503. A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. See id. 503(a)(5).

Thus, in order to withhold attorney-client privileged information from disclosure under rule 503, a governmental body must: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the information is privileged and confidential under rule 503, provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). See Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ). You indicate that the remaining requested information pertains to specific issues about which the district consulted its attorneys and otherwise reveals the content of communications between the district and its attorneys. However, after carefully reviewing your arguments and the remaining requested information at issue, we find that rule 503 is not applicable to any portion of this information. Accordingly, we conclude that the district may not withhold any portion of this information pursuant to rule 503 of the Texas Rules of Evidence.

We note that a portion of the submitted information is subject to section 552.130 of the Government Code. Section 552.130 excepts information from disclosure that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. See Gov't Code 552.130. Accordingly, we conclude that the district must withhold the Texas driver's license information that we have marked pursuant to section 552.130 of the Government Code.

We also note that the submitted information contains some information that is subject to section 552.136 of the Government Code. Section 552.136 makes certain access device numbers confidential and provides as follows:

(a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to:

(1) obtain money, goods, services, or another thing of value; or

(2) initiate a transfer of funds other than a transfer originated solely by paper instrument.

(b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential.

Gov't Code 552.136. Accordingly, we conclude that the district must withhold the information that we have marked pursuant to section 552.136 of the Government Code.

In summary, the district must withhold the Texas driver's license information that we have marked pursuant to section 552.130 of the Government Code. The district must also withhold the information that we have marked pursuant to section 552.136 of the Government Code. The district must release the remaining submitted information 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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at 512/475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division
RJB/lmt
Ref: ID# 173866
Enc. Marked documents

c: Ms. Rebecca Bouwsma
864 Ridgewood
Brownsville, Texas 78520
(w/o enclosures)


 

Footnotes

1. As the district did not claim that any portion of the remaining requested information was excepted from disclosure as attorney work product under section 552.111 within ten business days of the district's receipt of the request for information, we find that the district has waived this particular exception to disclosure. See Gov't Code 552.301, .302. Furthermore, as section 552.022 does not constitute an exception to disclosure under the Public Information Act (the "Act"), we do not address whether any portion of the information at issue is excepted from disclosure under section 552.022 of the Government Code.

2. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 551 (1990) (statutory predecessor to section 552.103 serves only to protect governmental body's position in litigation and does not itself make information confidential), 522 at 4 (1989) (discretionary exceptions in general), 473 (1987) (governmental body may waive section 552.111). Discretionary exceptions, therefore, do not constitute "other law" that makes information confidential.
 

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