|Office of the Attorney General - State of Texas
October 18, 2000
Ms. Karen L. Johnson
Dear Ms. Johnson:
You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID#140291.
The Grand Prairie Independent School District (the "district"), which you represent, received a request for the following information:
You state that a portion of the requested information has been provided to the requestor. You claim, however, that marked portions of the submitted information are excepted from disclosure under sections 552.101, 552.103, 552.107, and 552.111 of the Government Code and under section 21.355 of the Education Code. We have considered the exceptions you claim and reviewed the submitted information.
You argue that the information relating to the Bracewell and Patterson opinion regarding the legality of school facility use for an after-school YMCA program is excepted from public disclosure under Government Code section 552.107. Section 552.107(1) 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 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. See 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 protects them only to the extent that such communications reveal the attorney's legal opinion or advice. See 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. We agree that the information relating to the Bracewell and Patterson opinion regarding the legality of school facility use for an after-school YMCA program is excepted from disclosure under subsection 552.107(1).
You claim that the document regarding the attorneys' fees is excepted from disclosure under sections 552.103 and 552.107 of the Government Code. Government Code section 552.022(a)(16) provides that "information that is in a bill for attorney's fees and is not privileged under the attorney-client privilege" is public information and is not excepted from required disclosure. Attorney fee bills may be excepted only if expressly made confidential or if excepted under the attorney-client privilege. Section 552.103 does not render the requested information confidential. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.-Dallas 1999, no pet.) (litigation exception discretionary; governmental body may waive section 552.103 exception). Therefore, you may not withhold the information under section 552.103. We disagree that the information you have marked consists of confidential client communications or an attorney's legal advice; thus, this information is not excepted under subsection 552.107(1). Therefore, the attorneys' fee document must be released to the requestor in its entirety.
You contend that the information regarding the school climate survey results is excepted from disclosure pursuant to Government Code section 552.101 in conjunction with section 21.355 of the Education Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 21.355 of the Education Code provides that "[a] document evaluating the performance of a teacher or administrator is confidential." This office has interpreted this section to apply to any document that evaluates, as that term is commonly understood, the performance of a teacher or administrator. See Open Records Decision No. 643 (1996). You make the following statements regarding the information at issue:
It is the District's position that the documents evidencing the results of the School Climate Surveys for 2000 are evaluative in nature in that they clearly "evaluate, as that term is commonly understood, the performance of administrators." These documents serve "to determine the significance, worth, or condition of" all the individual administrators in [district] schools.
We disagree that the information constitutes an evaluation of the performance of a teacher or administrator. Although a portion of the questions asked pertain to the principal and/or school staff, the resulting summary cannot be categorized or perceived of as an evaluation of the performance of any specific individual. Thus, we conclude that the information is not excepted from disclosure pursuant to section 552.101 in conjunction with section 21.355 of the Education Code.
You argue that the district's goal setting session summary is excepted from disclosure under section 552.111 of the Government Code. You explain that this information consists of communications between the regional service center, the superintendent, and the board regarding district policy issues. 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 Dep't of Pub. 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, however, do not encompass internal administrative or personnel matters because disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. See Open Records Decision No. 615 at 5 (1993); see also City of Garland v. Dallas Morning News, 43 Tex. Sup. Ct. J. 303 (Jan. 13, 2000) (personnel communications not relating to agency's policymaking were not excepted from public disclosure under section 552.111). However, an agency's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). In addition, section 552.111 does not protect facts and written observation of facts and events that are severable from advice, opinions, and recommendation. Open Records Decision No. 615 at 4-5 (1993). If, however, the factual information is so inextricably intertwined with material involving advice, opinion, or recommendation as to make separation of the factual data impractical, that information may be withheld under section 552.111. Open Records Decision No. 313 (1982). The information at issue addresses administrative and personnel matters of a broad scope that affects the district's policy mission. Therefore, the information may be withheld from disclosure pursuant to section 552.111.
In summary, the information relating to the Bracewell and Patterson opinion regarding the legality of school facility use for an after-school YMCA program may be withheld under subsection 552.107(1). The document regarding attorneys' fees must be released to the requestor in its entirety. The climate survey summary must also be released. The goal setting session summary may be withheld 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).
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.
Julie Reagan Watson
Encl. Submitted documents
cc: Ms. Tawnell Hobbs
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US