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 supporting the recommendation is usually found under each itern. A recommendation 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 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.. 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 recognized 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 recommendations 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 

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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 exception 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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