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John Cornyn

July 6, 1999

Ms. Susan Combs
Texas Department of Agriculture
P.O. Box 12847
Austin, Texas 78711


Dear Ms. Combs:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 125474.

The Texas Department of Agriculture (the "department") received a request for the investigative file for incident number 2424-001-97-0026. The department has assigned this request tracking number TDA-OR-99-0045. You state that the department has released most of the responsive information. You claim, however, that the document submitted as Exhibit B is excepted from required public disclosure by sections 552.107 and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

You contend that the Exhibit B may be withheld as attorney work product under section 552.111. A governmental body may withhold attorney work product from disclosure under section 552.111 if it demonstrates that the material was 1) created for trial or in anticipation of civil litigation, and 2) consists of or tends to reveal an attorney's mental processes, conclusions and legal theories. Open Records Decision No. 647 (1996). The first prong of the work product test, which requires a governmental body to show that the documents at issue were created in anticipation of litigation, has two parts. A governmental body must demonstrate that 1) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue, and 2) the party resisting discovery or release believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. Open Records Decision No. 647 at 4 (1996).

You indicate that the information at issue was gathered or prepared in anticipation of litigation. You explain that the department is authorized to investigate pesticide-related complaints and may assess penalties for violations of chapters 75 and 76 of the Agriculture Code. Agric. Code 12.020, 76.1555(a). You inform us that the requested information was gathered for and concerned an administrative action, initiated by the department, which alleged specific violations of Texas pesticide law. You state that the case is now closed. Proceedings conducted after assessment of a department penalty are subject to the Administrative Procedure Act. Id. at 76.1555(h); cf Open Records Decision No. 588 at 7 (1991) (contested cases conducted under Administrative Procedure Act, chapter 2001 of Government Code, are considered litigation under section 552.103). We find that you have demonstrated in this case that the document at issue was created in anticipation of litigation. You have established the applicability of both parts of the first prong of the work product test.

The second prong of the work product test requires the governmental body to show that the documents at issue tend to reveal the attorney's mental processes, conclusions and legal theories. You state that the document "was prepared for and at the direction of an agency attorney for the purpose of case analysis and evaluation. It was also used to summarize, for the client agency, the department's legal position regarding proof of violations of state and federal pesticide laws in an administrative, civil, or criminal hearing or trial." Having reviewed the information and your arguments, we conclude that some of the information reveals attorney mental impressions, conclusions and strategy. However, the information at issue contains other additional information that merely refers to the facts of a case. This office has stated that the work product privilege does not extend to "facts an attorney may acquire." See Open Records Decision No. 647 at 4 (1996) (citing Owens-Corning Fiberglass v. Caldwell, 818 S.W.2d 749, 750 n. 2 (Tex. 1991). Moreover, the privilege does not protect memoranda prepared by an attorney that contain only a "neutral recital" of facts. See Leede Oil & Gas, Inc. v. McCorkle, 789 S.W.2d 686 (Tex. App.--Houston [1st Dist.] 1990, no writ). However, in Leede, the court noted that the attorney notes did not show how the attorney would use the facts, if at all, nor did the notes suggest trial strategy or indicate the lawyer's reaction to the facts. See id. at 687. Thus, we believe that it is possible for an attorney's selection and organization of facts of a case to reveal the attorney's mental impression and strategy of the case. See Marshall v. Hall, 943 S.W.2d 180 (Tex. App.--Houston [1st Dist.] 1997, no writ); Leede Oil & Gas, Inc., 789 S.W.2d 686 (Tex. App.--Houston [1st Dist.] 1990, no writ).(1)

With regard to the facts that appear in the submitted document, you state:

    These facts were selected and ordered by the department's legal staff from existing sources, rather than directly acquired, as part of the legal analysis of the investigation. The facts are selected and ordered for the purpose of aiding the attorney in his or her evaluation of the anticipated litigation and in rendering legal advice to the client agency. Because the facts have been selected and ordered by the agency attorney for the purpose of determining and communicating the legal basis and strategy for the proposed action, such recitations are non-neutral, rather than purely factual or basically factual, summaries or communications. Disclosure of such recitations would tend to reveal the attorney's mental impressions, thought processes, and legal strategy regarding the anticipated litigation. The recitations also represent the attorney's implied or express opinion regarding the importance or necessity of specific facts in proving the alleged violation(s). Such non-neutral factual recitations cannot be disclosed without revealing the attorney's mental impressions, thought processes, opinions, and strategy.

We have reviewed the information and your arguments. Based on your statements that the attorney made the decision to include the facts in the summaries, we believe the facts would reveal the attorney's impressions and strategy. We, therefore, agree that such facts are also attorney work product excepted from disclosure under section 552.111. You may withhold Exhibit B under section 552.111.

Because we make a determination under section 552.111, we need not address your additional arguments against disclosure. 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 on as a previous determination regarding any other records. If you have any questions regarding this ruling, please contact our office.


June B. Harden
Assistant Attorney General
Open Records Division


Ref: ID# 125474

Encl. Submitted documents

cc: Mr. Monty L. Cotter
Cotter Claims Service
P.O. Box 384
Panhandle, Texas 79068
(w/o enclosures)



1. The privilege does not apply where the party seeking to discover information shows that the information is 1) hidden in the attorney's file and 2) essential to the preparation of one's case. Hickman v. Taylor, 329 U.S. 495 (1947); see Marshall v. Hall, 943 S.W.2d 180, 183 (Tex. App.--Houston [1st Dist.] 1997, no writ). While the open records context provides no opportunity for the requestor to make such a showing, we assume that in the usual case, the documents the department releases to the requestor contain the facts of the case.

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