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John Cornyn

June 23, 2000

Mr. James R. Hines
Assistant General Counsel
Office of the Governor
P.O. Box 12428
Austin, Texas 78711


Dear Mr. Hines:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136432.

The Office of the Governor (the "office") received a request for various types of information regarding the execution of convicted murderer, David Wayne Spence. The responsive information consists of a memorandum, submitted as "Exhibit A," and documents from the clemency file regarding Spence, submitted as "Exhibit B." You claim that all of the submitted information is excepted from disclosure under sections 552.101, 552.107, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

We begin with the documents from the clemency file, submitted as Exhibit B. You claim that these documents are confidential under section 552.101 in conjunction with section 508.313 of the Government Code. Section 552.101 of the Government Code excepts from required public disclosure information that is made confidential by law, including information made confidential by statute. Accordingly, section 552.101 encompasses confidentiality provisions such as section 508.313 of the Government Code.

Section 508.313(a) of the Government Code provides:

(a) All information obtained and maintained, including victim protest letters or other correspondence, victim impact statements, lists of inmates eligible for release on parole, and an arrest record of an inmate is confidential and privileged if the information relates to:

(1) an inmate of the institutional division subject to release on parole, release to mandatory supervision, or executive clemency;

(2) a releasee; or

(3) a person directly identified in any proposed plan of release for an inmate.

Gov't Code 508.313.

You explain that Exhibit B consists of documents from the clemency file of Spence that were originally compiled by the Texas Department of Criminal Justice ("TDCJ") and then transferred to the Office of the Governor at the time that Spence was an inmate subject to executive clemency. We recognize that information may be transferred to another governmental body without destroying its confidential character so long as the entity or individual is authorized to possess the information. See, e.g., Attorney General Opinion JM-1235 (1990); Open Records Decision Nos. 655 (1997), 650 (1996), 516 (1989). In this case, the transfer of the clemency file from TDCJ to the office was authorized. Gov't Code 508.313(c) (authorizing TDCJ to provide information that is confidential under subsection (a) to the governor). Moreover, we find that section 508.313 protects more than simply the privacy interests of inmates subject to release, mandatory supervision, or executive clemency. It also protects the deliberations of the Board of Pardons and Paroles by encouraging frank and open discussion in its decision-making process. Accordingly the fact that Spence has been executed has no bearing on the applicability of section 508.313 to the clemency file that pertains to him. Therefore, we conclude that Exhibit B is made confidential in its entirety by section 552.101 of the Government Code in conjunction with section 508.313 of the Government Code.

We now address your arguments for withholding from disclosure the memorandum submitted as Exhibit A. Section 552.107(1) of the Government Code excepts from disclosure 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(1) 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). When communications from attorney to client do not reveal the client's communications to the attorney, section 552.107(1) protects them only to the extent that such communications reveal the attorney's legal opinion or advice. Open Records Decision No. 574 at 3 (1990). In addition, basically factual communications from attorney to client, or between attorneys representing the client, are not protected. Id. You explain that Exhibit A is "an internal memorandum created within the Office of the Governor between Alberto R. Gonzales, the Governor's General Counsel, and Governor George W. Bush." We have reviewed the submitted memorandum and find that it consists entirely of factual information. The memorandum contains no opinion or advice from the General Counsel, nor does it contain client confidences. Accordingly, the office may not withhold the memorandum under section 552.107.

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." 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). Additionally, 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 (1990). While the submitted memorandum qualifies as an internal communication, it contains no advice, recommendations, or opinions. It contains factual information only. Accordingly, the office may not withhold the memorandum as a protected intraagency communication under section 552.111.

Section 552.111 also encompasses the attorney work product doctrine. Open Records Decision No. 647 at 2-3 (1996) (citing Owens-Corning Fiberglass v. Caldwell, 818 S.W.2d 749 (Tex. 1991)). This office has stated that if a governmental body wishes to withhold attorney work product under section 552.111, it must show that the material 1) was created for trial or in anticipation of litigation under the test articulated in National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993), and 2) consists of or tends to reveal an attorney's mental processes, conclusions, and legal theories. See id. When showing that the documents at issue were created in anticipation of litigation for the first prong of the work product test, a governmental body's task is twofold. The governmental body must demonstrate that 1) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue, and 2) the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. See id. at 5. The submitted memorandum consists of factual information only and does not contain the General Counsel's mental processes, conclusions, or legal theories. Moreover, even if the recital of facts were construed as conveying the General Counsel's mental processes, you have not shown, and the memorandum does not indicate, that the memorandum was prepared in anticipation of litigation. Therefore, the office may not withhold the memorandum under the work product branch of section 552.111.

In conclusion, the office must release the memorandum contained in Exhibit A, and must withhold all of the documents contained in Exhibit B.

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# 136432

Encl: Submitted documents

cc: Mr. Doug Magee
1659 Lexington
New York, New York 10029
(w/o enclosures)


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