           THE     ATTORNEY            GENERAL
                       OF   TEXAS


                       December 29, 1986




Honorable Henry Wade                   Opinion No. JM-595
Criminal District Attorney
Condemnation Section                   Re:   Whether the governing body
Services Building                      of the Dallas Area Rapid Transit
Dallas, Texas   75202                  Authority may meet in executive
                                       session to discuss documents
                                       excepted from public disclosure
                                       by section 3(a)(ll) of the Texas
                                       Open Records Act

Dear Mr. Wade:

     On behalf of the Dallas Area Rapid Transit Authority you request
an opinion on the following question:

            Does the Open Meetings Act authorize the DART
         governing body and/or its official committees to
         discuss in closed executive sessions written eval-
         uations and recommendations of staff personnel
         (exempt from disclosure under section 3(a)(ll) of
         the Open Records Act) with regard to the selection
         of professional consultants and the selection of
         competitive bidders, 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 consists of

          any deliberation between a quorum of members of a
          governmental body at which any public business or



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Honorable Henry Wade - Page 2    (JM-595)




          public policy over which the governmental body has
          supervision or control is discussed or considered,
          or at which any formal action is taken. . . .

V.T.C.S. art. 6252-17, 51(a). The Dallas Area Rapid Transit Authority
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 therefore a governmental body 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 important public business and public policy. See, e.g.,
art. 1118~. 5510(a), (d), (e), (g), (j); 15. Its meetings are there-
fore 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 Meetings Act provides in part:

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

Sec. 2(a). The underlined language was added in 1973. Acts 1973,
63rd Leg., ch. 31, at 45. In 1972, this office found in the attorney-
client relationship the basis for an implied exception to the require-
ment of open sessions. Attorney General Opinion M-1261 (1972). This
exception has been codified as section 2(e) of the Open Meetings Act.
Id.
-
     This office has issued opinions considering whether a govern-
mental body may discuss in closed session information made confiden-
tial 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 Gillies V. Schmidt, 556 P.Zd 82 (Cola. Ct. App. 1976) (cited
in Attorney General Opinion H-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 to withhold the records it covers. The Open Records Act provides
in part:

             Sec. 3. . . .

            (a) All information collected, assembled, or
         maintained by governmental bodies pursuant to law
         or ordinance or in connection with the transaction



                                p. 2657
Honorable Henry Wade - Page 3   (JM-595)




         of official business is public information and
         available to the public during normal business
         hours of any governmental body, with the following
         exceptions only:

             (1) information deemed confidential by law,
          either Constitutional, statutory, or by judicial
          decision;

             .   .   .   .

             (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;

             .   .   .   .

             Sec. 14. (a) This Act does not prohibit any
          governmental body from voluntarily making part or
          all of its records available to the public, unless
          expressly prohibited by law; provided that such
          records shall then be 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 Records Act 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, conrmon law
and   constitutional orovisions do make particular information
confidential and prohibit a governmental body from disclosing it. See
Industrial Foundation of the South v. Texas Industrial Accident Board,
540 S.W.2d 668, 677, 683 (Tex. 1976). cert. denied, 430 U.S. 931
(1977). Records covered by these provisions are within the exception
in section 3(a)(l) for records made confidential by law. 540 S.W.Zd
at 677. Section 3(a)(ll), however, does not impose upon governmental
bodies a duty to withhold intra-agency memoranda; 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
education records prevails over section 3(a)(ll) exception).

     The Dallas Area Rapid Transit Authority does not violate the Open
Records Act when it holds public meetings 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 Construction Company, 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




                                P. 2658
Honorable Henry Wade - Page 4   (JM-595)




Opinion MW-254 (1980) (staff analysis of bids presented and discussed
in open session of Board of Human Resources).

     The brief submitted along 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 States V. Nixon, 418 U.S.
683 (1974), the United States Supreme Court recognized a constitu-
tionally 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
executive officers in Texas. A legislatively created special district
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 Corrections V. 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 constitutionally based executive privilege of United
States v. Nixon.     Section 3(a)(ll) was intended to parallel the
similar exception to the federal Freedom of Information Act, 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
constitutional separation of powers doctrine may also support it. See
generally, Environmental Protection Agency V. Mink, 410 U.S. 73
(1973). See also Federal Open Market Committee V. Merrill, 443 U.S.
340' (1979); Black V. Sheraton Corp. of America, 371 F. Supp. 97 (D.
D.C. 1974); Carl Zeiss Stiftung V. V.E.B. Carl Zeiss, Jena. 40 F.R.D.
318 (D. D.C. 1966); United States V. 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
Privileges, g5.01 (1984); McCormick, Evidence, 5108 (3d ed. 1984). As
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
testimonial privilege or provide a constitutionally based exception to
the Open Meetings Act for the Dallas Area Rapid Transit Authority.

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



                                p. 2659
Honorable Henry Wade - Page 5    (JM-59 3




and recommendations about the selection of professional consultants
and competitive bidders.

                              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 constitu-
          tionally based "executive privilege" to discuss in
          executive session written evaluations and recom-
          mendations about the selection of professional
          consultants and competitive bidders.




                                        J
                                            Very truly yours



                                            JIM     MATTOX
                                            Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General'

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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