Open Records Decision No. 289
November 25, 1981

	Re:  Whether report of internal audit of Texas Department of Mental Health and 
Mental Retardation's Design and Construction Division is open to the public

Honorable Walter B. Grubbs
Chairman
House Appropriations Committee
Capitol Building
Austin, Texas  78769

Mr. James A. Adkins
Acting Commissioner
Texas Department of Mental Health
      and Mental Retardation
P. O. Box 12668
Austin, Texas  78711

Dear Messrs. Grubbs and Adkins:

	The news media has asked you to release copies of two documents in your 
possession.  One is an internal audit of the Design and Construction Division of the 
Department of Mental Health and Mental Retardation.  This audit was performed by the 
agency's Internal Audit Division.  The other is a construction project contract for the air 
conditioning of certain ward buildings at its San Angelo Center.  You ask whether the 
Open Records Act, article 6252-17a, V.T.C.S., requires you to release this information.  
In support of your contention that you need not do so, you cite sections 3(a)(1), 3(a)(2), 
3(a)(3), and 3(a)(6) of the act.

	Section 3(a)(3) excepts from public disclosure:

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.

	For the section 3(a)(3) exception to apply, litigation must be “pending or 
reasonably anticipated in regard to a specific matter as opposed to a remote possibility 
among a group or classification.”  Open Records Decision No. 139 (1976); see also Open 
Records Decision Nos. 183 (1978); 126 (1976); Attorney General Opinion H-483 (1974).

	Many of the same individuals and transactions are involved in both the contract 
and the audit report.  We have been advised that copies of both documents are now in the 
hands of the district attorney of Travis County, who is reviewing them with an eye 
towards criminal prosecution of one or more of those individuals.  We further understand 
that litigation against the department by a former employee discharged as a result of the 
audit and said employee's actions under the contract is quite likely.  Finally, these 
documents have been provided to the state and county division of this office for 
determination of possible litigation against certain individuals named therein.  The 
district attorney and the assistant attorney general in charge of the litigation have 
determined that this material should not be released.

	In light of the foregoing, we believe it may properly be said that litigation is 
“reasonably anticipated” in this instance.  Moreover, our review of the audit and contract, 
coupled with the information supplied to us, convinces us that the information contained 
therein would be directly linked to such litigation.

	You may therefore withhold this audit from public disclosure under section 
3(a)(3).

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 Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger