                                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     sup-
porting the recommendation     is usually found under each itern.   A recommenda-
tion 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    admin-
istrative  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 recog-
nized 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 recommenda-
tions 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
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 excep-
tion 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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