|Office of the Attorney General - State of Texas
November 4, 1999
Dear Ms. DeCluitt:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 129448.
The City of College Station (the "city") received a request for numerous documents relating to a city landfill project.(1) You originally claimed that the requested information is excepted from disclosure under sections 552.103, 552.107, and 552.111 of the Government Code. However, in subsequent correspondence submitted to our office, you indicated that the city no longer reasonably anticipates litigation, and you have withdrawn your claim under section 552.103. Therefore, we have considered only the exceptions you claim under Government Code sections 552.107 and 552.111 and have reviewed the submitted information.(2)
You contend that Exhibit B-1 is excepted from disclosure under section 552.107. 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. Open Records Decision No. 574 at 5 (1990). Section 552.107(1) does not except purely factual information from disclosure, nor does it protect information gathered by an attorney as a fact-finder. Open Records Decision Nos. 574 (1990), 559 (1990), 462 (1987). Section 552.107(1) does not except from disclosure factual recounting of events or the documentation of calls made, meetings attended, and memoranda sent. Open Records Decision No. 574 at 5 (1990). Exhibit B-1 consists of a memorandum of law provided by attorneys Paul Gosselink and Lauren Kalisek at the request of the Brazos Valley Solid Waste Management Agency (the "agency").(3) We agree that the memorandum consists of the legal advice or opinions of the agency's attorney, and therefore may be withheld pursuant to section 552.107.
You have also asserted that Exhibits B-1, B-4, B-5, and B-6 are excepted from disclosure pursuant to section 552.111 of the Government Code. Since we have already concluded that Exhibit B-1 may be withheld pursuant to section 552.107, we will limit our discussion to the remaining exhibits to which you assert section 552.111 applies. Section 552.111 excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." This exception applies not only to a governmental body's internal memoranda, but also to memoranda prepared for a governmental body by its outside consultant. Open Records Decision Nos. 462 at 14 (1987), 298 at 2 (1981). 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. Section 552.111 does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Open Records Decision No. 615 at 4-5 (1993).
We will now consider whether section 552.111 applies to your enumerated exhibits. We have marked portions of the site selection criteria information which must be released. The information does not consist of advice, recommendations or opinions. Similarly, the first two paragraphs in the memorandum dated April 13, 1994 in Exhibit B-4 consist of factual information and may not be withheld. Additionally, Exhibit B-4 also contains an agenda of the Brazos County Commissioners' Court. Assuming that the agenda was posted pursuant to the Texas Open Meetings Act,(4) these documents have already been disclosed to the public and may not be withheld pursuant to section 552.111. We agree that the remaining information in the two memoranda in Exhibit B-4 consists of advice, recommendations, and opinions which reflect the policymaking process of the agency. Thus, the city may withhold the remaining information in Exhibit B-4.
Exhibit B-5 appears to be a draft survey provided to Bill Angelo, director of the agency, by Mike Carlton, a consulting engineer. Generally, section 552.111 does not except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Open Records Decision No. 615 at 4-5 (1993). Yet, where a document is a genuine preliminary draft that has been released or is intended for release in final form, factual information in that draft which also appears in a released or releasable final version is excepted from disclosure by section 552.111. Open Records Decision No. 559 (1990). However, severable factual information appearing in the draft but not in the final version is not excepted by section 552.111. Id. You may withhold Exhibit B-5 provided that the draft will be released in final form.
Finally, Exhibit B-6 consists of a memorandum from Bill Angelo, director of the agency. We agree that the memorandum may be withheld pursuant to 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.
Carla Gay Dickson
Ref: ID# 129448
Encl. Submitted documents
cc: Mr. C.J. Kling
1. You refer to this request as PWKMM Request No. 18.
2. We assume that you have released Exhibits B-2 and B-3, having withdrawn your claim under section 552.103.
3. The agency is a municipal solid waste disposal facility jointly owned by the city and the City of Bryan.
4. Gov't Code §§ 551.041 et seq.
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