RECEIVED

MAR 12 2019
OPEN RECORDS DIVISION

GOVERNOR GREG ABBOTT

March 12, 2019

Justin Gordon
Office of the Attorney General
Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548

Re: Public Information Requests from Chad Gray, received by the Texas Workforce
Commission (TWC Tracking No. 190122-001)

Dear Mr. Gordon:

The Office of the Governor (the "OOG") was notified on February 26, 2019, by the Texas
Workforce Commission ("TWC") of a request received under the Public Information Act (the
"PIA"). The TWC requested a decision from your office on February 26, 2019. A copy of the
request for information and the request for a decision fil0d by the P.VC ru:e attached as Exhibit A.

The OOG asserts that some of the information submitted to your office by TWC is excepted from
required public disclosure under the PIA. Pursuant to sections 552.304 and 552.305 of the
Government Code, this brief is submitted to object to the release of the information marked under
section 552.111 of the Government Code. The OOG has copied the requestor as a recipient of this
brief pursuant to sections 552.304(b) and 552.305(e). The information at issue is attached as
Exhibit B. 1

I. Information Excepted From Required Public Disclosure Under Section 552.111:

Deliberative Process Privilege

Section 552.111 of the Government Code excepts from required public disclosure "[a]n
interagency or intraagency memorandum or letter that would not be available by law to a party in
litigation with the agency." Tex. Gov't Code§ 552.111. Your office has construed section
552.111 to encompass the deliberative process privilege by excepting from disclosure internal
communications consisting of advice, recommendations, or opinions reflecting the policy making
processes of a governmental body. Tex. Att'y Gen. Open Records Decision. No. 615 at 5 (1993);
accord City of Garland v. Dallas Morning News, 969 S.W.2d 548, 556 (Tex. App.-Dallas 1998)
("Section 552.111 . . . excepts only those internal communications consisting of advice,
recommendations, and opinions reflecting the policy-making processes of the governmental body
at issue."), aff'd, 22 S.W.3d 351 (Tex. 2000). But, if factual information is so inextricably
intertwined with material involving advice, opinion, or recommendation as to make severance of
1
As noted by TWC, information similar to the information in Exhibit B was previously referred to the OAG under
OAG ID# 733192, which resulted in Open Records Letter Ruling No. 2018-25748 (2018).
the factual data impractical, the factual information also may be withheld under section 552.111.
See Tex. Att'y Gen. Open Records Decision. No. 313 at 3 (1982). The purpose of section 552.111
is "to protect advice and opinions on policy matters and to encourage frank and open discussion
within an agency in connection with its decision-making processes." Dallas Morning News, 969
S.W.2d at 556. Section 552.111 can also encompass communications between a governmental
body and a third party, including a consultant or other party with a privity of interest. See Tex.
Att'y Gen. Open Records Decision. No. 561 at 9 (1990) (section 552.111 encompasses
communications with party with which governmental body has privity of interest or common
deliberative process).

Your office has also concluded that a preliminary draft of a document that is intended for public
release in its final form necessarily represents the drafter's advice, opinion, and recommendation
with regard to the form and content of the final document, so as to be excepted from disclosure
under section 552.111. See Tex. Att'y Gen. Open Records Decision. No. 559 at 2 (1990) (applying
statutory predecessor). Section 552.111 protects factual information in the draft that also will be
included in the final version of the document. See id. at 2-3. Thus, section 552.111 encompasses
the entire contents, including comments, underlining, deletions, and proofreading marks, of a
preliminary draft of a policymaking document that will be released to the public in its final form.
See id. at 2.

The information marked within Exhibit B includes such privileged communications and drafts.
First, the information contains communications between an employee of the OOG and an official
of another state agency communicating in their official policy-makin ca acities.
· · exas, s ares a pnvity of interest and common deliberative
process with this party with regard to the specific policy-making matters at issue. These
communications reflect advice and recommendations to or from the OOG, often in the form of
questions seeking clarification on compliance with previous recommendations. Second, the
. information includes a preliminary draft circulated between parties with which the OOG shares a
common deliberative process, communicating in their official policy-making capacities. These
drafts are intended for public release in their final form. Moreover, these drafts reflect the drafter's
advice, opinions, and recommendations with regard to the form and content of the final document.
In addition, a portion of the marked information consists of factual information that is inextricably
intertwined with the material involving advice, opinion, and recommendations as to make
separation of the data impractical. In all cases, the marked information reveals internal
deliberations, and the release of such information would have a chilling effect on the frank and
open discussion necessary for the decision-making process. Thus, the OOG asserts that the marked
information within Exhibit Bis excepted from disclosure under section 552.111 of the Government
Code and the deliberative process privilege.

II. Conclusion

On behalf of the OOG, I respectfully request you address the applicability of the above raised
exception in the pending open records letter ruling. If you have any questions or need additional
information, please contact me at (512) 463-1750.

POST OFFICE Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES
2~
Public Information Officer
Assistant General Counsel
Office of Governor Greg Abbott
cc: Nicholas Lealos
Assistant General Counsel
Texas Workforce Commission
101 East 15th Street
Austin, Texas 78778-0001
VIA EMAIL ONLY

Chad Gray
Workers Defense Project
5604 Manor Road
Austin, Texas 78723
VIA EMAIL ONLY

POST OFFICE Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES
Texas vVorkforce Commission Ruth R. Hughs. Chair
l't.llTU11ISS1oncr Reph!scnt1ng
A Member of Texas \Vorkforce Solutions Fmplo~crs

Julian Alvara
Connmssi\'ncr Re-pr.!~c:ntrn~
Lalx>r
February 26, 2019 RECEIVED Robert D ThomJs
c~)m1ms~1oner R~prc:~en!,,1g
Office of the Attorney General FEB 2 6 2019 the f>ul>hc

Open Records Division Ldward Serna

Post Ot1ice Box 12548 OPEN RECORDS DIVISION Interim Exet:utive Director

Austin, TX 78711-2548

RE: Name ofRequestor: Chad Gray

Date Request Received: 1/22/2019 (payment received February 12, 2019)
Subject of the Request: Emails and Communications
TWC Tracking No.: 190122-001

Dear Sir/Madam:

The Texas Workforce Commission ("Agency") received an original request for infonnation from
the above-named requestor on the date indicated above. Please note that the Agency was closed
on January 21, 2019 and February 18, 2019 due to state holidays. Because the charges associated
with the request exceeded $100, the Agency sent the requestor an itemized cost estimate
pursuant to section 552.2615 and 552.26 y . The
y receive payment for the request on February 12, 2019. The Agency notified your office
and the requestor of our request for a ruling on February 19, 2019. Therefore, this request for
ruling is timely. The subject of the request concerns emails and communications by named
parties and third parties related to specific proposed rule amendments. Please note that the
portion of the information not subject to an exception will be released to the requestor, in a
redacted form if necessary.

The Agency is providing notice by letter to third parties about their right to submit comments
pursuant to section 552.305 of the Government Code. A copy of that notice is attached.

The Agency requests a ruling on the application of sections 552.107 (attorney-client privileged
material) and 552.l l 1 (deliberative process/draft privilege) to certain responsive documents. The
Agency is enclosing a representative sample of the responsive documents subject to these
exceptions for the purpose of obtaining a ruling.

Section 552.107(1) Exception: Certain Legal Matters

Section 552. l 07( l) of the Government Code protects information within the attorney-client
privilege. When asserting the 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. Open Records Decision No. 676 at 6-7 (2002). A governmental body must
demonstrate that the infonnation constitutes or documents a communication. Id. at 7. The
communication must have been made "to facilitate the rendition of professional legal services"

IO I ! . ! 5th "-tret:t • \u,tin. k:,,is 78778-!lOO I • t51 ~) 463-2222 • Rday T~xa~: 800-735-298t) f f DD) 800-715-2988 ( Vnicei • \\ \HI .le\ilS\\orJ..force.org
b.iual Opportunity Employer/ Program
"t'EXAS
WORKFORCE SOLUTIONS
Office of the Attorney General Page2

to the client governmental body. Tex. R. Evid. 503(b)(l). 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. 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 a capacity other than that of attorney). The
privilege applies only to communications between or among clients, client representatives,
lawyers, and lawyer representatives. Tex. R. Evid. 503(b)(l). Finally, the attorney-client
privilege applies only to a confidential communication "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), (b)(l). Whether a communication meets these criteria depends on the intent of the
parties involved at the time the information was communicated. Osborne v. Johnson, 954
S.W.2d 180, 184 (Tex. App.-Waco 1997, orig. proceeding). Section 552.107(1) generally
excepts an entire communication that is protected by the attorney-client privilege unless 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 documents attached in EXHIBIT 1 contain communications between Agency Attorneys

and Agency staff The Agency attorneys and Agency staff are identified. The information
constitutes or documents a communication from or to agency attorneys as part of the rendition
of legal services. Each marked document in the marked exhibit contains information related to
the rend1t1on of legal services to the Agency. These documents and information were created,
collected, and retained by Agency, and were accessible only by Agency staff involved in the
matters stored in the system.

These communications were not intended to be disclosed to third persons. The communications
were between TWC attorneys and Agency staff and relate to the rendition of legal services and .
remain confidential. Only Agency staff may access these documents, and the Agency does not
intend to disclose them to anyone outside the Agency. These communications have remained
confidential. The Agency has identified the parties to communications and will

Section 552.111 Exception: Deliberative Process and Draft Documents

Section 552.111 states that "[a]n interagency or intraagency memorandum or letter that would
not be available by law to a party in litigation with the agency is excepted from the requirements
of Section 552.021." Section 552.111 encompasses the deliberative process privilege. See Open
Records Decision No. 615 at 2 (1993). The purpose of this exception is to protect advice,
opinion, and recommendation in the decisional process and to encourage open and frank
discussion in the deliberative process. See Austin v. City of San Antonio, 630 S. W.2d 391, 394
(Tex. App.-San Antonio 1982, orig. proceeding): Open Records Decision No. 538 at 1-2 (1990).

In Open Records Decision No. 615, your office re-examined the statutory predecessor to section
552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S. W.2d
408 (Tex. App.-Austin 1992, orig. proceeding). Your office determined section 552.1 I l
excepts from disclosure only those internal communications that consist of advice, opinions,
Office of the Attorney General Page 3

recommendations, and other material reflecting the policymaking processes of the governmental
body. See ORD 615 at 5. Further, section 552.lll does not protect facts and \vntten
observations of facts and events that are severable from advice, opinions, and recommendations.
Arlington Indep. Sch. Dist. v. Tex. Attorney Gen .. , 37 S.W.3d 152 (Tex. App.-Austin 2001, no
pet); see ORD 6 I 5 at 4-5. But, if factual information is so inextricably intertwined with
material involving advice, opinion, or recommendation as to make severance of the factual data
impractical, the factual information also may be withheld under section 552. I 11. See Open
Records Decision No. 313 at 3 ( 1982). ·

Your office has also concluded a preliminary draft of a document intended for public release in
its final form necessarily represents the drafter's advice, opinion, and recommendation with
regard to the form and content of the final document, so as to be excepted from disclosure under
section 552.111. See Open Records Decision No. 559 at 2 (1990) (applying statutory
predecessor). Section 552.111 protects factual information in the draft that also will be included
in the final version of the document. See id. at 2-3. Thus, section 552.111 encompasses the
entire contents, including comments, underlining, deletions, and proofreading marks, of a
preliminary draft of a policymaking document that will be released to the public in its final
form. See id. at 2.

The Agency asserts that the marked records in EXHIBIT 1 consist of advice, recommendations,
and opinions regarding Agency decisions within the jurisdiction of the A enc
communications. · · · · es communications between and among
Agency employees providing advice, recommendations, or opinions on matters within the scope
of the Agency's functions and jurisdiction. These records reflect the discussions and thought
processes by and among Agency personnel in developing their advice, opinions, and
recommendations. To the extent that the information referred to your office includes
communications with any other governmental entity, that entity was operating in a policy-
making capacity and shares a privity of interest and common deliberative process 1• These
records also include draft communications protected by section 552.111 of the Government
Code. To the extent that the communications include draft documents, the final versions of
those draft documents have been released or are intended for release in their final form.
Therefore, the Agency believes the marked records, including both the draft documents and
advice, recommendations, and opinions are excepted from disclosure under section 552.111 of
the Government Code.

The Agency requests a ruling that the documents attached in EXHIBIT 1 be excepted from
required public disclosure under the exceptions cited above. As stated, we are attaching a
marked representative sample of the responsive documents for your review. As previously
stated, we will provide the requestor a copy of the documents not subject to an exception (with
redactions if necessary}.

1
This infom,ation was previously referred to your office under your tracking number #733192 by another agency.
The prior ruling stated that the infonnation may be withheld.
Office of the Aftorlwi~ . Page~.

•..
,. . .}'
Lealos,Nick

From: Chad Gray<

Sent: Friday, January 18, 2019 6:24 PM
To: Open Records
Subject: Open Records Request 1.18.19
Attachments: Open Records Request-TWC-1.18.18.docx

CAUTION: Email not from TWC System. Use care when clicking links and opening
attachments.

January 18, 2019

To whom it may concern,

I am requesting information pursuant to the Texas Public Information Act (TPIA).

This is a formal request for information related to the Texas Workforce Commission's proposed amendments to
Subchapter C, Tax Provisions, of §815.134 of the Texas Administrative Code dated December 4, 2018:lU

• Please provide copies of all communication between TWC Commissioner Ruth R. Hughs and her staff
and third parties engaged in the development, consideration, and/or drafting of this rule chanoe.

· n me u e, ut are not limited to, the following:

• Emails made from, or stored on, computers, mobile device, or email system/servers
• Calendar invites, scheduling notices, and appointments
• Written notes made by commissioners or staff
• Times and dates o( and notes taken during, on premises meetings
• Records of phone, video. or audio conference communication
• Interoffice communication

I request electronic copies of documents where possible. If a document is not available in electronic format. then
I am prepared to pay the reasonable direct cost for photocopies of the records.

Thank you for your attention to this request. Should you have any questions or require additional information,
please feel free to contact me at 334-748-l 04 l or at chad•a:\\Orkersdefense.orn.

Sincerely.

Chad Gray
R:esearch Coordinator
Workers Defense Project
5604 !'vianor Rd
Austin. TX 78723
Chad Gray
Research Coordinator
Workers Defense Project

OlSClAtMER: This message may contain information that is confidential or legally privileged. lf you are not the intended
recipient, please immediately advise the sef)der by reply e-mail that this message has been inadvertently transmitted to
you and delete this e-mail, including any attachments, from your system.

2
 January 18, 2019
To whom it may concern,

I am requesting information pursuant to the Texas Public Information Act (TPIA).

This is a formal request for information related to the Texas Workforce Commission's proposed
amendments to Subchapter C, Tax Provisions, of §815.134 of the Texas Administrative Code dated
December 4, 2018: 1

• Please provide copies of all communication behveen TWC Commissioner Ruth R. Hughs and her
staff~ and third parties engaged in the development, consideration, and/or drafting of this rule
change.

Forms of communication include, but are not limited to, the following:
• Emails made from, or stored on, computers, mobile device, or email system/servers
• Calendar invites, scheduling notices, and appointments
• Written notes made by commissioners or staff
• Times and dates of, and notes taken during, on premises meetings
• Records of phone, video, or audio conference communication
• Interoffice communication

request electronic copies of documents where possible. If a document is not availabl

Irect cost for photocopies of the records.

Thank you for your attention to this request. Should you have any questions or require additional
infom1ation. please feel free to contact me at 3 34-748-1041 or at chad@workersdefense.org

Sincerely,

Chad Gray
Research Coordinator
\Vorkers Defense Project
5604 Manor Rd
Austin, TX 78723

1
https:/itwc.texas.gov/fifes/agency/pr-ch-815-status-test-approved-l 2-4- l 8-twc.pdf