October 30, 1974
The Honorable Richard Gibson, Director
Law Office of the University of Texas
Sys tern Opinion No. H- 436 .
601 Colorado Street
Austin, Texas 78701 Re: Application of the Open
Records Act to Agenda
material of the University
Dear Mr. Gibson: of Texas Board of Regents
You have received three written requests for copies of the material
supporting the agenda for the meeting of the Board of Regents of the
University of Texas System held on September 20, 1974. The material
requested is identical in form to that prepared for every regularmeeting
of the Board of Regents and is compiled approximately seven to ten days
prior to the meeting. The document is in book form and consists of more
than 130 legal-sized, single-spaced pages. You have informed us that the
document is traditionally open to public inspection but only after the meeting.
The requesters, all of whom are news media representatives, are
particularly interested in obtaining copies of the document before the
meeting since it discusses in great detail the questions to be considered
by the Board. It has been alleged that without the document it is difficult
to follow the discussion or actions of the Board.
Requests have been made for the materials supporting the agenda for
prior meetings, and it has been indicated that requests will be made with
respect to future meetings. Because of the extremely short time period
between the preparation of the document and the time that the meeting to
which it relates is held, it is necessary to consider these requests in
general terms as otherwise any request for a specific document would be
quickly mooted when the meeting was completed.
The document requested is organized by agenda item. The ChanceHor’s
recommendation to the Board of Regents along with factual material sup-
porting the recommendation is usually found under each itern. A recommenda-
tion to the Chancellor from a President of one of the component institutions
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The Honorable Richard Gibson, page 2 (~-436)
and a recommendation to the President from a dean or other administrative
official will often be included under an agenda item.
You suggest that almost all of the material requested is excepted from
disclosure by virtue of section 3(a)(ll) of the Open Records Act, Article
6252-17a, V. T. C. S. That portion of the Act indicates that an exception
to the disc&sure requirement is provided for
(11) inter-agency or intra-agency memorandums
or letters which would not be available by law to a
party other than one in litigation with the agency:
This exception in the Open Records Act is patterned after an almost
identical provision in the federal Freedom of Information Act, 5 U.S. C.
9 552. When the Legislature adopts a statute from another jurisdiction
it is presumed that it intended also to adopt the settled construction given
it by the courts of that jurisdiction. State V. Wiess, 1.71 S. W. 2d 848 (Tex.
1943); Blackman v. Hansen, 169 S. W. 2d 962 (Tex. 1943); High Plains
Natural Gas Co. v. Railroad Commission of Texas, 467 S. W.2d 532 (Tex.
Civ. App. --Austin 1971, writ ref’d n. r. e. ).
The exemption in the federal act was specifically designed to protect
from disclosure advice and opinion on policy matters and to encourage
open and frank discussion between subordinate and chief concerning admin-
istrative action. Environmental Protection Agency v. Mink, 410 U.S. 73,
86-87 (1973); Ackerly v. Ley, 420 F. 2d 1336, 1340 (D.C. Cir. 1969);
General Services Administration v. Benson, 415 F. 2d 878, 880-81 (9th
Cir. 1969); Consumers Union v. Veterans Administration, 301 F. Supp. 796,
806 (S. D. N. Y. 1969). appeal-dismissed, 436 F. 2d 1363 (2nd Cir. 1971);
H. R. Rep. No. 1497, 89th Gong.. 2nd Sess. (1966). Note,The Freedom of
Information Act and the Exemption for Intra-agency Memoranda, 86 HARV.
L. REV. 1047 (1973); Comment, The Freedom of Information Act and its
Internal Memoranda Exception: Time for a~ Practical Approa.ch, 27 S. W. L. J.
806 (1973); E, The Freedom of Information Act --The Parameters of the
Exceptions, 62 GEO. L.J. 1~77 (1973). The exception is based on a recog-
nized privilege from discovery afforded to deliberations or recommendations
as to policy. Machin v. Zuck,ert, 316 F. 2d 336, 339 (D. C. Cir. 1963).
cert. denied, 375 U.S. 896 (1963); Boeing Airplane Co. vs Coggeshall.
280 F.2d 654, 660 (D. C. Cir. 1960).
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The Honorable Richard Gibson, page 3 (H-436)
To the extent that portions of the document requested consist of advice
and recommendations, those portions are not required to be disclosed. The
University contends that the document is permeated with recommendation
and advice causing almost all of it to be protected. Based on the material
you have provided, we do not agree. With some exceptions the recommenda-
tions consist of only a sentence or two with the remainder of the information
under the agenda item containing factual material. The factual information
can and should be severed from the portion containing - ouinion
_ and advice
and is to be disclosed. Mink, supra; National Cable Television Association
v. F. C. C., 479 F. 2d 183 (D. C. Cir. 1973); Ethyl Corp. v. Environmental
Protection Agency, 478 F. 2d 47 (4th Cir. 1973); Benson, supra; Consumers
Union, supra.
You also claim that several items are exempted under sections 3(a)(4)
and 3(a)(5) of the Act. These exceptions concern information relating to the
location of public property before a project is announced and to information
which would give advantage to competitors or bidders. You contend that
25 items fall in one or both of the categories. We have inspected each of
the items, but are unable to determine how or why these exceptions cited
might apply to any of them. The Act is clearly structured to require the
agency to bear the burden of establishing that requested information falls
within an exception. The bare claim that this exception applies without
additional indication of how competitors might obtain an advantage, or
without a specific indication that there has been no prior announcement of
a particular project, does not provide us with a sufficient basis on which
to agree that these exceptions apply.$ We believe a 3(a)(4) or 3(a)(5) claim
by an agency must be accompanied by information detailing why the excep-
tion applies. Without such a demonstration, the presumption in favor of
disclosure prevails, and the information must be made public.
SUMMARY
The material supporting the agenda of the University
of Texas Board of Regents meeti.ng is public information
insofar as it reflects factual matters. Claims that release
of information would give advantage to competitors must be
accompanied by an indication detailing why the exemption
applie 8.
Very truly yours,
Attorney General of Texas
The Honorable Richard Gibson, page 4 (H-436)
DAVID M. KENDALL, Chairman
Opinion Committee
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