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John Cornyn

April 18, 2000

Ms. Jan Soifer
Locke, Liddell & Sapp, L.L.P.
100 Congress Avenue, Suite 300
Austin, Texas 78701-4042


Dear Ms. Soifer:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134664.

The Texas Department of Transportation (the "department"), which you represent, received a request for ten items, all having to do with the Draft Environmental Impact Statement ("DEIS") regarding State Highway 130.(1) You state that the department intends to release information responsive to request item numbers 4, 7, 9, and 10. In addition, the department intends to release one document that is responsive to request item number 1. You claim that the remaining responsive information is excepted from disclosure under section 552.111 of the Government Code.(3) We have considered the exception you claim and reviewed the submitted information.

Section 552.111 excepts "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." 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. An agency's policymaking functions do not encompass internal administrative or personnel matters; disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. Open Records Decision No. 615 at 5-6 (1993).

Generally, section 552.111 does not except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Id. at 4-5. 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.

The submitted documents consist of intraagency communications between various divisions of the department and interagency communications between the department and the Federal Highway Administration ("FHA"). All of these communications discuss preliminary drafts of the DEIS. When determining if an interagency memorandum is excepted from disclosure under section 552.111, we must consider whether the agencies between which the memorandum is passed share a privity of interest or common deliberative process with regard to the policy matter at issue. See Open Records Decision No. 561 at 9 (1990).

You explain that the department, through several of its divisions, and the FHA collaborated in the creation of the DEIS which by now has been completed and released to the public. It appears from your arguments and from the submitted documents, that in regard to the DEIS, both agencies shared the common goal of compiling and conveying information to the public about the proposed state highway. Therefore, we conclude that the department and FHA share a privity of interest or common deliberative process with regard to the policy matter at issue.

Because we find that the agencies share a privity of interest, we now turn to the information contained in the submitted documents. As most of the submitted information consists of correspondence regarding preliminary drafts of the DEIS, we find that most of the information is excepted under section 552.111. However, several of the submitted documents simply serve as "cover sheets" for enclosed comments. As these cover sheets contain no advice, recommendations, opinions, or policymaking processes, the department must release them to the requestor. We have marked the documents that must be released. The department may withhold the rest of the submitted information under section 552.111.

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.


E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division


Ref: ID# 134664

Encl: Submitted documents

cc: Mr. Dick Kallerman
Sierra Club
2510 Cedarview Drive
Austin, Texas 78704
(w/o enclosures)



1. The request was actually addressed to the Texas Turnpike Authority ("TTA"); however, (2)

2. The TTA is now a division of the Texas Department of Transportation. See Act of June 20, 1997, 75th Leg., R.S., ch.1171, 1, 1997 Tex. Gen. Law Serv. 4427 (Vernon)

3. You explain that no responsive information exists in regard to request item number 3. We note that the Public Information Act does not require a governmental body to make available information which does not exist at the time of the request. Open Records Nos. 605 at 2 (1992), 572 at 1 (1990), 558 at 1 (1990), 362 at 2 (1983).

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