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John Cornyn

March 15, 1999

Mr. Paul C. Sarahan
Litigation Division
Texas Natural Resource Conservation Commission
P.O. Box 13087
Austin, Texas 78711-3087


Dear Mr. Sarahan:

You ask whether certain information is subject to required public disclosure under the Texas Open Records Act (the "act"), chapter 552 of the Government Code. Your request was assigned ID# 122870.

The Texas Natural Resource Conservation Commission (the "Commission") received a request for various categories of information related to the Bureau of Economic Geology ("BEG"). Specifically, the requestor seeks information "regarding BEG's evaluation of TxDOT's disposal of wastes in shallow injection wells or other shallow in-ground disposal," and "Contract No 96-0198." In response to the request, you submit to this office for review the records, submitted as Enclosures 3A, 3B, and 3C, which you assert are responsive. You state that the commission "has made available to [the requestor] the part of the documents and reports that [the commission] believes to be public." You assert, however, that the remaining submitted information is excepted from disclosure pursuant to sections 552.107 and 552.111 of the Government Code.(1) We have considered your arguments and claimed exceptions, and reviewed the information submitted.

We first consider whether Enclosure 3A may be withheld under the claimed exception. Section 552.107(1) excepts from disclosure communications that reveal client confidences or the attorney's legal opinion or advice. Open Records Decision Nos. 589 at 1 (1991), 574 at 3 (1990), 462 at 9-11(1987). 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. Open Records Decision No. 574 at 5 (1990). However, section 552.107(1) does not protect purely factual information unless the factual information constitutes a confidence that the client related to the attorney. See id. at 5. We have reviewed the records, submitted as Enclosure 3A, and agree that the information is excepted from disclosure by section 552.107.

You also assert that Enclosures 3B and 3C are excepted from disclosure under section 552.111.(2) Section 552.111 excepts "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. An agency's policymaking functions, however, do not encompass internal administrative or personnel matters; disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. Open Records Decision No. 615 at 5-6 (1993). In addition, section 552.111 does not except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Id. at 4-5. Upon review of the records contained in Enclosures 3B and 3C, we conclude that the information contained therein reflects the policymaking processes of the commission, and thus may be withheld from disclosure under section 552.111.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.


Sam Haddad
Assistant Attorney General
Open Records Division


Ref.: ID# 122870

Enclosures: Submitted documents

cc: Mr. Richard Lowerre
Henry, Lowerre, Johnson, Hess & Frederick
4006 Speedway
Austin, Texas 78751
(w/o enclosures)



1. Although in your original submission to this office you raised section 552.103, you have in later correspondence withdrawn your claim under this exception. Therefore, in this ruling, we do not address the applicability of section 552.103 to the requested information.

2. Although you have raised both section 552.107 and section 552.111 for Enclosure 3B, we will consider whether the information may be withheld under the latter exception, since generally section 552.111 protection is broader than section 552.107(1).

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