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John Cornyn

September 27, 1999

Mr. Scott Fawcett
Legal Counsel
Open Records Division
Comptroller of Public Accounts
P.O. Box 13528
Austin, Texas 78711-3528


Dear Mr. Fawcett:

You ask whether certain information is subject to required public disclosure under the, Texas Public Information Act chapter 552 of the Government Code. Your request was assigned ID# 126881.

The Comptroller of Public Accounts (the "Comptroller") received a request for all internal and external correspondence concerning the application of Comptroller Rule 3.547(c)(5) and its predecessor, Comptroller Rule 3.391(b)(6). You indicate that some responsive information will be made available to the requestor. You seek to withhold certain documents, or portions thereof, pursuant to section 552.111 of the Government Code.

Section 552.111 of the Government Code protects from required public disclosure interagency and intra-agency memoranda and letters, but only to the extent that they contain advice, opinion, or recommendation intended for use in the policymaking process. Open Records Decision No. 615 at 5 (1993); see also Austin v. City of San Antonio, 630 S.W.2d 391 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.). Section 552.111 does not protect facts and written observation of facts and events that are severable from advice, opinions, and recommendation. Open Records Decision No. 615 at 5 (1993).

We agree that the memoranda, or portions thereof, consist of advice, opinion, or recommendation protected by section 552.111. We have marked these documents accordingly.

Additionally, in Open Records Decision No. 559 (1990), this office held that a preliminary draft of a document that is intended for release in a final form necessarily represents the advice, opinion, and recommendation of the drafter as to the form and content of the final document and as such may be withheld pursuant to the predecessor of section 552.111. The draft documents before us directly pertain to policy matters concerning the comptroller. Assuming that these documents in fact are intended for release to the public in their final form, we conclude that the comptroller may withhold these and similar draft documents coming within the ambit of the current open records request in their entirety pursuant to section 552.111.

We are resolving this matter with this 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 may not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.


Yen-Ha Le
Assistant Attorney General
Open Records Division


Ref.: ID# 126881

Encl. Marked documents

cc: Mr. Eric Stein
Ryan & Company
100 Congress Avenue, Suite 190
Austin, Texas 78701
(w/o enclosures)


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