Open Records Decision No. 311
April 13, 1982

	Re:  Availability under the Open Records Act of information held by Texas 
Municipal Power Agency concerning proposed power transmission line

Mr. Albert Witcher
Naman, Howell, Smith, Lee and Muldrow
Attorney at Law
P. O. Box 1470
Waco, Texas  76703

Dear Mr. Witcher:

	On behalf of the Texas Municipal Power Agency you have requested our decision 
as to whether certain information in the agency's possession is subject to public 
disclosure under the Open Records Act, article 6252-17a, V.T.C.S.  The pertinent facts, 
as set out in your letters to this office, are as follows.

	The agency is seeking to acquire an electric transmission line easement across 
some land owned by a certain individual.  This individual, through his attorney, 
submitted a request to the agency for information relating “in any way” to the proposed 
power transmission line.  In response to this request, the agency offered to make 
available some general information.  The agency desires, however, to withhold the 
information contained in four spiral bound documents which were submitted to this 
office.  These bound documents bear the following titles:  “Engineering Feasibility 
Study:  Identification of Future Capacity Requirements and Alternative Generating 
Sources”; “Engineering Feasibility Study:  Identification of Future Capacity 
Requirements and Alternative Generating Sources -- Supplemental Executive Summary”; 
“Summary of Engineering Feasibility Study”; and “Transmission Line Route Analysis 
for Denton Area Transmission Lines.”

	In support of your contention that the material in these four documents may be 
withheld from disclosure, you cite sections 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 a 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.

	Section 3(a)(11) excepts:

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.

	In connection with your section 3(a)(3) claim, you advise that the general 
information requested by the landowner relates to the route selection process.  You 
express the opinion that this material would not have been requested unless the 
landowner is contemplating finding some way to have the easement rerouted or to contest 
any action for condemnation that may be initiated.  You further advise that the agency is 
currently acquiring many miles of transmission easements, which action will likely result 
in various condemnation suits and related litigation.

	This office has observed on several occasions that the mere chance of litigation is 
not sufficient to trigger section 3(a)(3).  Open Records Decision Nos. 288 (1981); 183 
(1978); 139 (1976).  The exception is applicable, however, where “litigation is 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).  (Emphasis 
added).

	You advise that no litigation is presently pending.  We understand, however, that 
the agency has determined the location of the particular easement it needs, which will 
involve a specific tract of land, and that although the agency is still seeking to acquire the 
easement through good faith negotiations, it will resort to condemnation proceedings, if 
necessary, in order to acquire the easement.  Because a condemnation proceeding will be 
initiated if the negotiations are not fruitful, we agree with your determination that 
litigation is, at the present time, “reasonably anticipated in regard to a specific matter,” 
and, therefore, that section 3(a)(3) is applicable.  We are also of the opinion that the 
information contained in the four documents would be “related” to ensuing litigation 
within the meaning of section 3(a)(3).

	Because we conclude that you may at this particular time withhold the 
information in question under section 3(a)(3), we need not consider whether it may be 
withheld under any other provision of the Open Records Act.

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
Patricia Hinojosa
Jim Moellinger