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2002 Texas Attorney General Reports and Opinions 1 (2002)

handle is hein.sag/sagtx0080 and id is 1 raw text is: Tex. Att'y Gen. Open Record Decision No. ORD-676 (2002) -- John Cornyn Administrati... Page 1 of 15 Offic of the Attorney General - State of Texas John Cornyn November 30, 2002 Open Records Decision No. 676 RE: Re-evaluation of Open Records Decision No. 574 (1990) regarding the scope of the attorney- client privilege under section 552.107(1) of the Government Code; whether section 552.101 of the Government Code also encompasses the attorney-client privilege; whether the attorney- client privilege is mandatory and compelling for purposes of the Public Information Act; and related questions. (ORQ-40) AUTHORITY Under section 552.011 of the Government Code we consider the scope of the section 552.107(1) exception, and related questions pertaining to the attorney- client privilege in the context of the Public Information Act (the Act). - THE PROPER EXCEPTION FOR THE ATTORNEY-CLIENT PRIILEGE Recent case law, without analysis, suggests that the attorney-client privilege may be asserted under either section 552.107(1) or section 552.101 of the Government Code.- 2 While recognizing that section 552.107(1) specifically incorporates the privilege into the Act, one court states that the catch-all provision of Section 552.101 certainly includes information governed by the attorney-client privilege.- 30 Prior to 1990, this office had also construed the statutory predecessor to section 552.101 to incorporate the attorney-client privilege.-4 But in 1990, this office concluded that section 552.101 does not encompass discovery privileges in general.L Unlike confidential information to which section 552.101 applies, the public distribution of privileged information by a governmental body, as holder of the privilege, does not implicate criminal penalties under the Act.-U The Texas attorney-client privilege is found at Rule 503 of the Texas Rules of

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