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John Cornyn

January 12, 2000

Ms. Margaret Hoffman
Environmental Law Division
Texas Natural Resource Conservation Commission
P.O. Box 13087
Austin, Texas 78711-3087


Dear Ms. Hoffman:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131403.

The Texas Natural Resource Conservation Commission (the "commission") received a request for information relating to ozone pollution and/or ozone-forming pollution from Ellis County and Ellis County cement plants. You state that the commission has made available to the requestor what it believes to be public information. You have submitted what you characterize as representative samples of other responsive information for our review.(1) You claim that the submitted information is excepted from disclosure under sections 552.107 and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted.

Because Section 552.111 of the Government Code is the more inclusive exception, we will address it first. Section 552.111 excepts from required public disclosure "an interagency or intra-agency memorandum or letter that would not be available by law to a party in litigation with the agency." The purpose of section 552.111 is to protect advice, opinion, and recommendation used in the decisional process from public disclosure and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App. -- San Antonio 1982, no writ); Open Records Decision No. 559 (1990). In Open Records Decision No. 615, this office reexamined the predecessor statute to section 552.111 in light of the decision in Texas Dep't of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App. - Austin 1992, no writ). We concluded that section 552.111 excepts from required public disclosure "only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the deliberative or policymaking processes of the governmental body[.]" Open Records Decision No. 615 at 5-6. Section 552.111 does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Id. at 4-5. If, however, factual information is so inextricably intertwined with material involving advice, opinion, or recommendation that severance is impractical, factual matter also may be withheld. Open Records Decision No. 313 (1982).

You state that the information in question represents internal communications relating to the preliminary drafts of a new emissions rule that the commission is in the process of promulgating. You further state that the commission will make the final version of the proposed rule available to the requestor when it is filed for public viewing. In Open Records Decision No. 559 (1990), this office concluded that a preliminary draft of a document that is intended for public release in its final form necessarily represents the advice, opinion, and recommendation of the drafter with regard to the form and content of the final document, so as to be excepted from public disclosure under the statutory predecessor to section 552.111. The exception encompasses factual information in the draft that also will be included in the final version of the document. Id. Thus, section 552.111 encompasses the entire contents, including comments, underlining, deletions, and proofreading marks, of a preliminary draft of a policymaking document that will be released to the public in its final form. Id. In light of these considerations and our review of the submitted information, we conclude that the commission may withhold its preliminary drafts of the forthcoming rule and the related internal communications from public disclosure pursuant to section 552.111 of the Government Code.

As we are able to make a determination under section 552.111 of the Government Code, we do not address your claim under section 552.107. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.


James W. Morris, III
Assistant Attorney General
Open Records Division


Ref: ID# 131403

Encl. Submitted documents

cc: Mr. Jim Schermbeck
707 Wylie
Cedar Hill, Texas 75184
(w/o enclosures)



1. In reaching our conclusion, we assume that each of the "representative samples" that you have submitted is truly representative of the corresponding responsive information as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). Our decision does not reach, and thus does not authorize the withholding of, any information that substantially differs from that submitted to this office for our review.

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