|Office of the Attorney General - State of Texas
September 16, 1999
Mr. Thomas Ricks, President
Dear Mr. Ricks:
You have asked 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# 127292.
The University of Texas Investment Management Company ("UTIMCO") received a request for the following four categories of information:
1) true author of marie's 03 June (subject: our 5/19/99 & 5/20/99 re jerry's 17 may . . . see subject line in the header, which your smoke shovelers deliberately ignored thus rendering most of this letter from them a pathetic bad faith refusal, . . . [sic]
2) where it really was in fact prepared plus all other related information....
3) copy of each mary ann roser open records request [and]
4) *all* information (including agents' and attorneys') re ORQ-32/ ID# 126255-99.
You state that "UTIMCO has made available to Mr. Lisson much of the information within the scope of his request." In your initial letter to this office, you state that you seek to withhold the submitted information under sections 552.101, 552.104, 552.107 and 552.111 of the Government Code.(1) In subsequent correspondence to this office, you offer arguments in support of the original section 552.107 claim. In addition, you argue that the request for information is not a proper request under the act. We have considered the exceptions and arguments you raise, and have reviewed the submitted information.
Initially, we address your contention that UTIMCO need not respond to Mr. Lisson's request because it is not a "valid request for information." You explain that the request for information was sent "via electronic mail to Mr. Thomas G. Ricks, President of UTIMCO." You argue that Mr. Ricks is not the person designated to receive electronic mail requests. Rather, UTIMCO's Records and Information Manger is designated to receive electronic mail requests.
A statutory ten business day response period begins on the day that a governmental body receives a written request for information. Gov't Code § 552.301(a) ( "a written request includes a request made in writing that is sent to the officer for public information, or the person designated by that officer, by electronic mail or facsimile transmission"). The chief administrative officer of a governmental body is the officer for public information [with exceptions that do not apply here]. Gov't Code 552.201(a). You acknowledge that the request was sent to UTIMCO's chief administrative officer. However, you contend that, because this officer has designated another individual as his agent for purposes of open records requests and has informed the requestor of this designation, requests made directly to Mr. Ricks, as President of UTIMCO, are not "proper." We note that the language of the statute that permits an officer for public information to make such a designation is phrased in the alternative; the request may be made "to the officer for public information, or the person designated by that officer." Gov't Code § 552.301(a). Although UTIMCO states that the request to Mr. Ricks may evidence "an intent to harass" on the part of the requestor to create needless administrative difficulties by routing requests in this manner, the motives of a requestor may not be considered in responding to a request made under the Public Information Act. See Gov't Code § 552.222(b). We conclude that, since the subject request was made to the chief administrative officer of UTIMCO, in accordance with section 552.301, the requirements of chapter 552 of the Government Code apply. Accordingly, we will next address the applicability of the claimed exception to the submitted information.
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. In addition, basically factual communications from attorney to client, or between attorneys representing the client, are not protected. Id.
You represent that the submitted document, addressed to "The Honorable John Cornyn," is a draft document prepared by an attorney on behalf of UTIMCO. See generally Gov't Code §§ 552.007(b), 223. You further explain that the submitted "[i]nformation contains legal advice to UTIMCO from attorneys at Vinson & Elkins. . . . a law firm that serves as counsel to UTIMCO," and the draft contains language which was "not revealed in the final documents" submitted to this office. We agree that the draft document may be withheld from disclosure because the draft necessarily reflects the attorney's recommendation for the final form and content of the letter. In this instance, we conclude that the submitted draft document is protected under sections 552.107(1), since it reflects the attorneys' advice, opinion, and recommendation. See Tex. R. Civ. Evid. 503(b)(1), 503(a)(5) (under section 552.107, communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of rendition of professional legal services). Accordingly, the submitted information may be withheld in its entirety under section 552.107(1).
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.
Ref.: ID# 127292
Encl. Submitted document
cc: Mr. Stephen N. Lisson
1. Although you cite to sections 552.101, 552.104, and 552.111, you did not explain how these exceptions apply to the information at issue. Thus, we cannot consider the applicability of these exceptions to the requested information. See Gov't Code § 552.301(b); Open Records Decision No. 363 (1983). We note that chapter 552 of the Government Code places on the custodian of public records the burden of establishing that records are excepted from public disclosure. Attorney General Opinion H-436 (1974). Therefore, in this ruling we only consider the exceptions for which your have offered support.
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