KEN PAXTON XJTORNEY GENER.'\!. OF TEX,\S May 5, 2020 ey General Public Inti mation Coordinator Office the Attorney General P.O. ox 12548 A tin, Texas 78711-2548 OR2020- l 2729 Dear Ms. Downey: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned 10# 825658 (PIR# R003656). The Office of the Attorney General (the "OAG") received a request for communications involving the Attorney General, named OAG employees, and representatives of a specified organization during a specified time period. The OAG states it will release some of the requested information. The OAG claims the submitted information is excepted from disclosure under section 552.107 of the Government Code. We have considered the claimed exception and reviewed the submitted representative sample of information. 1 Section 552.107(1) of the Government Code protects info1mation coming within the attorney-client privilege. See Gov't Code§ 552.107(1). When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege in order to withhold the information at issue. See Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate the information constitutes or documents a communication. Id. at 7. Second, 1 We assume the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 ( 1988),497 ( 1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. PJ~ I~ IG'A T'' Box 12548, ,\ust;n, Tcm 78711-2548 • (5 \ 2) 463-2100 • ,~.tms»ttomcygru,crnl.go, Ms. Lauren Downey - Page 2 the communication must have been made "to facilitate the rendition of professional legal services" to the client governmental body. See TEX.R. Evm. 503(6)(1). The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. See In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.-Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in capacity other than that of attorney). Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. Thus, the mere fact that a communication involves an attorney for the government does not demonstrate this element. Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives . See TEX. R. Evm. 503(b)(1 ). Thus, a governmental body must inform this office of the identities and capacities of the individuals to whom each communication at issue has been made. Finally, the attorney-client privilege applies only to a confidential communication, id., meaning it was "not intended to be disclosed to third persons other than those: (A) to whom disclosure is made to further the rendition of professional legal services to the client; or (B) reasonably necessary to transmit the communication." Id. 503(a)(5). Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated. See Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.-Waco 1997, orig. proceeding). Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain the confidentiality of a communication has been maintained. Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920,923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein). The OAG states the information at issue includes communications between an OAG attorney and co-counsel in pending litigation. The OAG further states the information at issue includes communications between OAG attorneys and representatives of a privileged party. The OAG states the communications were made for the purpose of providing professional legal services to the State of Texas. Further, the OAG states these communications were not intended to be disclosed and have not been disclosed to nonprivileged parties. Upon review, we find the OAG has demonstrated the applicability of the attorney-client privilege to the information at issue. Thus, the OAG may withhold the information at issue under section 552.107(1) of the Government Code. This letter ruling is limited to the particular information 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 information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more infonnation concerning those rights and responsibilities, please visit our website at https ://\vw\v.texasaltorncv,2:cncral.govl o pc11-uovernrnent/members-pu blic/\vhat-expec1-ai1er-ruling-issuecl or call the OAG's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable AM HICA\J pVERSIGHT Ms. Lauren Downey - Page 3 charges for providing public info1mation under the Public Information Act may be directed to the Cost Rules Administrator of the OAG, toll free, at (888) 672-6787. Sincerely, Matthew Taylor Assistant Attorney General Open Records Division MT/eb Ref: ID# 825658 Enc. Submitted documents c: Requestor (w/o enclosures) AM( HICAN pVERSIGHT