October 30, 1974

The Honorable Richard Gibson, Director Law Office ofthe University of Texas Systern Opinion No. H- 436

. 601 Colorado Street Austin, Texas 78701 Re: Application ofthe Open Records Act toAgenda material ofthe University Dear Mr. Gibson: of Texas Board ofRegents
You have received three written requests for copies ofthe material supporting the agenda for themeeting ofthe Board of Regents ofthe University of Texas System held on September 20, 1974. The material requested is identical in form to that prepared for every regularmeeting ofthe Board of Regents and is compiled approximately seven to ten days prior tothe meeting. The document is inbook form and consists ofmore than 130 legal-sized, single-spaced pages. You have informed us that the document is traditionally open topublic inspection but only after themeeting.
The requesters, all of whom are news media representatives, are particularly interested in obtaining copies ofthe document before the meeting since it discusses in great detail the questions to be considered by the Board. Ithas been alleged that without the document itis difficult to follow the discussion or actions ofthe Board. Requests have been made for the materials supporting the agenda for prior meetings, and ithas been indicated that requests will be made with respect to future meetings. Because ofthe extremely short time period between the preparation ofthe 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 tothe Board ofRegents along with factual material supporting the recommendation is usually found under each itern. A recommendation tothe Chancellor from aPresident ofone ofthe component institutions

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and a recommendation tothe President from a dean or other administrative official will often be included under an agenda item.
You suggest that almost all ofthe material requested is excepted from disclosure by virtue of section 3(a)(ll) ofthe Open Records Act, Article 6252-17a, V.T. C.S. That portion ofthe 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 inlitigation with the agency:
This exception in the Open Records Act is patterned after analmost identical provision in the federal Freedom ofInformation Act, 5U.S. C. 9 552. When the Legislature adopts a statute from another jurisdiction itis presumed that itintended also to adopt the settled construction given it bythe courts ofthatjurisdiction. State V. Wiess, 1.71S. W. 2d 848 (Tex. 1943); Blackman v. Hansen, 169S.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 inthe federal act was specifically designed to protect from disclosure advice and opinion onpolicy matters and to encourage open and frank discussion between subordinate and chief concerning administrative 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.. 2ndSess. (1966). Note,The Freedom of Information Act and the Exemption for Intra-agency Memoranda, 86HARV. L. REV. 1047 (1973); Comment, The Freedom ofInformation Act and its Internal Memoranda Exception: Time for a~Practical Approa.ch, 27 S.W. L. J. 806 (1973); E, The Freedom ofInformation Act --The Parameters ofthe Exceptions, 62 GEO. L.J. 1~77(1973). The exception is based onarecognized privilege from discovery afforded to deliberations or recommendations as topolicy. 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).

p. 2016The Honorable Richard Gibson, page 3 (H-436)

To the extent that portions ofthe document requested consist ofadvice and recommendations, those portions are not required tobe disclosed. The University contends that the document is permeated with recommendation and advice causing almost all of ittobe protected. Based onthematerial you have provided, we do not agree. With some exceptions the recommendations consist of only a sentence or two with the remainder ofthe 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) oftheAct. These exceptions concern information relating to the location ofpublic property before aproject is announced and toinformation which would give advantage to competitors or bidders. You contend that 25 items fall in one or both ofthe categories. We have inspected each of the items, but are unable to determine how or why these exceptions cited might apply to any ofthem. The Act is clearly structured to require the agency tobear the burden ofestablishing that requested information falls within an exception. The bare claim that this exception applies without additional indication ofhow competitors might obtain an advantage, or without a specific indication that there has been noprior announcement of
aparticular project, does notprovide us with asufficient basis onwhich 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 exception applies. Without such a demonstration, the presumption infavor of disclosure prevails, and the information must be made public.
SUMMARY
The material supporting the agenda ofthe University ofTexas Board ofRegents meeti.ng is public information insofar as it reflects factual matters. Claims that release ofinformation would give advantage to competitors must be accompanied by anindication detailing why the exemption applie 8. Very truly yours,

Attorney General of TexasThe Honorable Richard Gibson, page 4 (H-436)

DAVID M. KENDALL, Chairman Opinion Committee

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