THE ATTORNEY GENERAL OF TEXAS

December 29, 1986

HonorableHenry Wade CriminalDistrictAttorney CondemnationSection ServicesBuilding Dallas,Texas 75202 OpinionNo. JM-595

Re: Whether the governing body of the Dallas Area Rapid Transit Authority may meet in executive session to discuss documents excepted from public disclosure by section 3(a)(ll) of the Texas Open RecordsAct

Dear Mr. Wade:

On behalf of the Dallas Area Rapid TransitAuthority you request an opinion on the followingquestion:

Does the Open Meetings Act authorize the DART governing body and/or its official committees to discuss in closed executive sessionswritten evaluations and recommendations of staff personnel (exempt from disclosureunder section 3(a)(ll) of the Open RecordsAct)with regard to the selection of professional consultants and the selection of competitivebidders, and the awarding of contracts to professional consultants and to competitive bidders?
The Dallas Area Rapid Transit Authority is a regional transportation authority established .pursuant to article lllSy, V.T.C.S. The authority is a "public body corporate and politic, exercising public and essential governmental functions.

. . .m V.T.C.S. art. IllSy, 510(a). It has power to acquire, hold, and dispose of real and personal property, to acquire, operate and maintain a transportation system. to exercise the right of eminent domain. to issue revenue bonds, and to charge fares to redeem the bonds and pay costs of operating its facilities. Id. §§lO(d), (e), - (g), (3); 15.
The authority acknowledges that meetings of its board of directors are subject to the Open Meetings Act, and we agree. A "meeting" subject to the act consistsof

any deliberationbetween a quorum of members of a governmentalbody at which any public business or

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publicpolicy overwhich the governmentalbody has supervisionor control is discussed or considered, or at which any formal action is taken.

. . .
V.T.C.S. art. 6252-17, 51(a). The DallasArea Rapid TransitAuthority is a special district. See Black's Law Dictionary, 5th Ed. (special district is a limited government structure created to accomplish a primarily local improvement); see also Attorney General Opinion H-238 (1974). It is thereforea governmentalbody within the Open Meetings Act. V.T.C.S. art. 6252-17, §l(c).

Even a partial listing of the authority's powers evidences its control over importantpublic business and public policy. See, e.g., art. 1118~. 5510(a), (d), (e), (g), (j); 15. Its meetings are therefore subject to the Texas Open Meetings Act. Standing subcommittees which deliberate on matters within the authority's jurisdiction are also subject to the act. See Attorney General Opinions H-823 (1976); H-238 (1974);B-3 (1973). -
The Open MeetingsAct provides inpart:

Except as otherwise provided in this Act or specificallypermitted in the Constitution, every regular, special, or called meeting or session of every governmental body shall be open to the public. (Emphasisadded).

Sec. 2(a). The underlined language was added in 1973. Acts 1973, 63rdLeg., ch. 31, at 45. In 1972, this office found in the attorneyclient relationship thebasis for an implied exception to the requirement of open sessions. Attorney General OpinionM-1261 (1972). This exceptionhas been codified as section 2(e) of the Open Meetings Act. Id. - This office has issued opinions considering whether a governmental body may discuss in closed session informationmade confidential by statutes other than the Open Meetings Act. Attorney General Opinions MW-578 (1982); H-1154 (1978); R-780 (1976); H-484 (1974). See also GilliesV. Schmidt, 556 P.Zd 82 (Cola.Ct. App. 1976) (cited inAttorney GeneralOpinionH-1154).

Your question does not raise this issue, since section 3(a)(ll) of the Open Records Act does not impose a duty on any governmental body towithhold the records it covers. The OpenRecordsAct provides in part:

Sec. 3.

. . .

(a) All information collected, assembled, or maintained by governmentalbodies pursuant to law or ordinanceor in connectionwith the transaction

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of official business is public information and available to the public during normal business hours of any governmentalbody,with the following exceptionsonly:
(1) information deemed confidential by law, either Constitutional, statutory, or by judicial decision;

. . . . (11) inter-agency or intra-agencymemorandums or letterswhich would not be availableby law to a party other than one in litigation with the agency;

. . . . Sec. 14. (a) This Act does not prohibit any governmentalbody from voluntarilymaking part or all of its recordsavailable to the public,unless expressly prohibited by law; provided that such records shall thenbe available to any person.
The Open Records Act does not in itself make any information secret or confidential. Open Records Decision Nos. 216 (1978); 177 (1977); 22 (1973). The governmental body may waive exceptions to public disclosure in the Open RecordsAct by failing to raise them or by refusing to comply with the requirements for requesting an Open Records Decision from the Attorney General's Office. Open Records Decision Nos. 363 (1983); 150 (1977). Certain statutory, conrmonlaw and constitutional orovisions do make particular information confidentialand prohibit a governmentalbody from disclosing it. See IndustrialFoundationof the Southv. Texas IndustrialAccident Board, 540 S.W.2d 668, 677, 683 (Tex. 1976). cert. denied, 430 U.S. 931 (1977). Records coveredby these provisions are within the exception in section 3(a)(l) for records made confidentialby law. 540 S.W.Zd at 677. Section 3(a)(ll),however, does not imposeupon governmental bodies a duty to withhold intra-agencymemoranda; it merely permits them to do so. Open Records Decision No. 363 (1983); see also Open Records Decision No. 120 (1976) (student's right of access to his educationrecordsprevails over section 3(a)(ll)exception).

The DallasArea Rapid TransitAuthoritydoesnot violate the Open RecordsAct when it holds publicmeetings to deliberate on the choice of consultants and bidders. Attorney General Opinion MW-129 (1979) (discussion of hiring professional consultants must be in open session); see also A & A ConstructionCompany, Inc. V. City of Corpus Christi, 527 S.W.2d 833 (Tex. Civ. App. - Corpus Christ1 1975, no writ) (bids opened and read at public meeting); Attorney General

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OpinionMW-254 (1980) (staffanalysis of bids presented and discussed in open session of Board of Human Resources).
The brief submittedalong with your request letter suggests that a constitutionaf~

executive privilege authorizes the Dallas Area Rapid Transit Authority to discuss intra-agency memoranda in executive sessions. The constitutional executive privilege does not, in our opinion, apply to the authority. In United StatesV. Nixon, 418 U.S. 683 (1974), the United States Supreme Court recognized a constitutionally based privilege protecting from discovery confidential communications between high government officials, in particular the president, and their immediate advisors. It is an open question whether the Texas Constitution provides such a privilege for high executiveofficers in Texas. A legislativelycreated specialdistrict is. however, subject to discovery proceeding to the same extent as private litigants. See Lowe V. Texas Tech University, 540 S.W.2d 297 (Tex. 1976);Texas Department of CorrectionsV. Herring, 513 S.W.2d 6 (Tex. 1974).
Section 3(a)(ll) of the Open Records Act also has an "executive privilege" aspect, see Open Records Decision No. 308 (1982),but this differs from the constitutionallybased executiveprivilege of United States v. Nixon. Section 3(a)(ll) was intended to parallel the similar exception to the federal Freedom of InformationAct, found at 5 U.S.C. section 552(b)(5). Attorney General Opinion H-436 (1974); Open Records Decision No. 251 (1980). Section 3(a)(ll) and the corresponding federal provision except from disclosure memoranda or letters which could not be obtained through discovery by a private party in litigation with the agency. Open Records Decision No. 251 (1980). Federal cases have identified this privilege against discovery of intra-agency advice as an "executive privilege." This "executive privilege" is an evidentiary privilege based primarily on the common law, although recent federal cases suggest that the constitutionalseparationof powers doctrinemay also support it. See generally, Environmental Protection Agency V. Mink, 410 U.S. 73 (1973). See also Federal Open Market CommitteeV. Merrill, 443 U.S. 340'(1979);Black V. Sheraton Corp. of America, 371 F. Supp. 97 (D. D.C. 1974);Carl Zeiss StiftungV. V.E.B. Carl Zeiss, Jena. 40 F.R.D. 318 (D.D.C. 1966);United StatesV. Gates, 35 F.R. D. 524 (D.C.Colo. 1964); Kaiser Aluminum and Chemical Corporation V. United States, 157 F. Supp. 939 (U.S. Ct. Cl. 1958); Larkin, Federal Testimonial d. 1984). As Privileges, g5.01 (1984);McCormick,Evidence, 5108 (3de incorporated into section 3(a)(ll) of the Onen Records Act. the executive privilege protects from disclosure opinion, advice, and recommendation of subordinates to superiors. It does not create a testimonialprivilege or provide a constitutionallybased exception to the Open MeetingsAct for theDallas Area Rapid TransitAuthority.

In answer to your question, we conclude that the Dallas Area Rapid Transit Authority is not authorizedby section 3(a)(ll) of the Open Records Act to discuss in executive sessionwritten evaluations

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and recommendations about the selection of professional consultants and competitivebidders.

SUMMARY

The Dallas Area Rapid Transit Authority is a governmental body subject to the Open Meetings Act, V.T.C.S. art. 6252-17. It is not authorized by either section 3(a)(ll) of the Open Records Act, article 6252-17a, V.T.C.S., or a constitutionallybased "executiveprivilege"to discuss in executive session written evaluations and recommendations about the selection of professional consultantsand competitivebidders.
Very trulyyours 

# J

JIM MATTOX AttorneyGeneral of Texas

JACK HIGHTOWER FirstAssistantAttorney General'

MARY KELLER ExecutiveAssistantAttorneyGeneral

RICK GILPIN Chairman,OpinionCommittee
Preparedby SusanL. Garrison AssistantAttorneyGeneral

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