Open Records Decision No. 282
September 23, 1981

	Re:  Availability under Open Records Act of information developed in inspection 
of state mental hospitals

W. Kent Johnson
Chief of Legal Services
Texas Department of Mental Health
      and Mental Retardation
P.O. Box 12668
Austin, Texas  78711

Dear Mr. Johnson:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to the availability of internal reports of the Texas Department of Mental 
Health and Mental Retardation relating to inspections of certain of its facilities.  You 
suggest that the reports are excepted from disclosure by sections 3(a)(3) and 3(a)(11) of 
the act.

	The reports at issue here are the subject of presently pending litigation, Wells v. 
Killough, cause no. TY-80-110-CA, filed in the United States District Court for the 
Eastern District of Texas.  In addition, in another related action, R.A.J. v. Kavanagh, 
cause no. CA3-74-394-C, filed in the United States District Court for the Northern 
District of Texas, there is presently in effect a three-year consent agreement under which 
numerous issues related to this information may be litigated.  Both the attorney for the 
department and the assistant attorney general who represents the department have 
determined that the reports should be withheld from disclosure under section 3(a)(3).  
We believe that this determination is reasonable.  We have examined the materials and 
have determined them to be relevant to the litigation.  The reports, therefore, are 
excepted from disclosure at this time by section 3(a)(3) of the Open Records Act, as 
“information relating to litigation.”  Open Records Decision Nos. 270, 266 (1981); 141, 
135 (1976).  In view of this determination, we need not address the applicability of 
section 3(a)(11).

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
Jim Moellinger
Bruce Youngblood