|Office of the Attorney General - State of Texas
October 5, 2000
Mr. John Steiner
Dear Mr. Steiner:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 139846.
The City of Austin (the "city") received a written request for all information pertaining to all aspects of the pending efforts of Brushy Creek Municipal Utility District (MUD) to have any part of the capital recovery fees collected for wastewater connections to City of Austin facilities be returned to the MUD or any other entity, such as LCRA, or not used for City of Austin facilities purposes collected under the provisions of the existing contract between the MUD and the city.
You have submitted to this office as responsive to the request various communications between the city and a representative of Brushy Creek Municipal Utility District (the "MUD"), and between the city attorneys themselves, draft documents, and attorneys' handwritten notes. You contend that these documents are excepted from public disclosure pursuant to sections 552.101 and 552.103 of the Government Code, the attorney-client privilege as incorporated into section 552.107(1) of the Government Code, and the attorney work product privilege as incorporated into section 552.111 of the Government Code.
Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." You contend that section 552.101 incorporates Rule 1.05 of the Texas State Bar Disciplinary Rules and Rule 503 of the Texas Rules of Civil Evidence. However, discovery privileges do not serve as exceptions to disclosure under section 552.101. See Open Records Decision No. 575 (1990); see also Open Records Decision No. 416 (1984). Consequently, the city may not withhold any of the information at issue pursuant to section 552.101 in conjunction with these discovery privileges.
To secure the protection of section 552.103(a), a governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation to which the governmental body is a party. Open Records Decision No. 588 (1991). Additionally, the governmental body must demonstrate that the litigation was pending or reasonably anticipated as of the day it received the records request. Gov't Code § 552.103(c). The mere chance of litigation will not trigger section 552.103(a). Open Records Decision No. 452 at 4 (1986). To demonstrate that litigation is reasonably anticipated, the governmental body must furnish concrete evidence that litigation involving a specific matter is realistically contemplated and is more than mere conjecture. Id.
Your brief to this office contains no facts that suggest that the city or any other entity intends to bring litigation in connection with the capital recovery fees, nor does our review of the records at issue reveal any indication that such litigation is contemplated at this time. We conclude, therefore, that you have not met your burden of demonstrating that the requested information relates to pending or reasonably anticipated litigation. The city may not withhold any of the information pursuant to section 552.103.
For similar reasons, we conclude that the city may not withhold any of the information at issue as "attorney work product" under section 552.111 of the Government Code. The first requirement that must be met to consider information "attorney work product" is that the information must have been created for trial or in anticipation of litigation. In order for this office to conclude that work product was created in anticipation of litigation, we must be satisfied that
a) a reasonable person would have concluded from the totality of the circumstances . . . that there was a substantial chance that litigation would ensue; and b) the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue . . . .
See National Tank v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A "substantial chance" of litigation does not mean a statistical probability, but rather "that litigation is more than merely an abstract possibility or unwarranted fear." Id. at 204. After reviewing your brief and the documents at issue, we conclude that you have met neither of these tests. Consequently, the city may not withhold any of the records at issue as "attorney work product."
Finally, we address the applicability of section 552.107(1) of the Government Code, which protects information coming within the attorney-client privilege. See Open Records Decision No. 574 (1990). In instances where an attorney represents a governmental entity, the attorney-client privilege protects only an attorney's legal advice or opinion and client confidences. Id. After reviewing the information you submitted to this office, we agree that many of the documents at issue constitute attorney-client privileged communications and thus come within the protection of section 552.107(1). We note, however, that some of the records at issue consist of communications between the city and a representative of the MUD. These communications, including copies of draft documents shared with the MUD, do not come within the attorney-client privilege and therefore must be released to the requestor. We have marked the documents accordingly.
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).
Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.
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.
Ref: ID# 139846
Encl. Submitted documents
cc: Mr. John C. McLemore
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US