Open Records Decision No. 266
March 17, 1981

Re:  Availability to public of investigative report prepared by city fire department

Mr. Nelson A. Clare
Assistant City Attorney
200 Main Plaza, Suite 101
San Antonio, Texas  78205

Dear Mr. Clare:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to the availability of two investigative reports prepared by the Fire 
Department of the city of San Antonio.  On April 17 and again on May 22, 1980, the 
assistant fire chief submitted to the fire chief reports of an investigation arising from the 
termination of a probationary firefighter.  The particular probationary firefighter 
subsequently filed a complaint of discrimination with the federal Equal Employment 
Opportunity Commission [EEOC], alleging that certain other probationary firefighters 
received preferential treatment.  EEOC complaints have also been filed by two other 
probationary firefighters who were terminated and who are peripherally discussed in the 
investigative reports.  All these cases are presently pending before the EEOC.  You 
suggest that the investigative reports are excepted from disclosure by sections 3(a)(1), 
3(a)(3), and 3(a)(11) of the Open Records Act.

	Section 3(a)(3) excepts:

information relating to litigation of a criminal or civil nature and 
settlement negotiations, to which the state or political subdivision is, 
or may be, a party, or to which an officer or employee of the state or 
political subdivision, as a consequence of his office or employment, 
is or may be a party, that the attorney general or the respective 
attorneys of the various political subdivisions has determined should 
be withheld from public inspection.

You have determined that there is a reasonable probability of litigation involving one or 
more of the complaints, and that, as a result, both investigative reports should be 
withheld from disclosure in their entirety, since their release might “adversely affect the 
city's interest.”  See Open Records Decision No. 135 (1976).  Since all three complaints 
are pending before the EEOC, we believe that this determination is reasonable.  Unlike 
the situation in Open Records Decision No. 139 (1976), there is here more than a mere 
chance of litigation.  See Open Records Decision Nos. 135 (1976); 141 (1976).  It is 
therefore our decision that the two investigative reports prepared by the San Antonio Fire 
Department are excepted from disclosure at this time by section 3(a)(3) of the Open 
Records Act.  In view of this determination, we need not address the applicability of the 
other two exceptions you have claimed.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gray III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin