Open Records Decision No. 331
December 21, 1982

	Re:  Letter from city housing authority to Department of Housing and Urban 
Development on application for development of housing units

Mr. Michael F. Hanratty
Executive Director
Housing Authority of the City
    of Fort Worth
P. O. Box 430
Fort Worth, Texas  76101

Dear Mr. Hanratty:

	The Fort Worth Housing Authority has applied to the United States Department 
of Housing and Urban Development [hereinafter HUD] for funds to finance a low-
income housing project.  You have received a request for access to the materials that 
were sent to HUD in connection with this application, which consist of a cover letter and 
numerous enclosures.  You have asked whether sections 3(a)(3), 3(a)(4) and 3(a)(11) of 
the Open Records Act, article 6252-17a, V.T.C.S., authorize you to deny this request.

	Section 3(a)(3) excepts from required 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.

	In support of your section 3(a)(3) claim, you state that the individual who seeks 
access to these materials:

has publicly stated on more than one occasion that he and members 
of a neighborhood association intend to file suit against the authority 
to block development of the 94 housing units.

	Where there is nothing more to substantiate a section 3(a)(3) claim than mere 
threats of litigation, we cannot conclude that the section applies.  This office has 
repeatedly held that the mere chance of litigation is not sufficient to trigger section 
3(a)(3).  Open Records Decision Nos. 311 (1982); 288 (1981); 183 (1978).  The facts 
you have presented do not provide concrete evidence that a lawsuit will be filed.  See, 
e.g., Open Records Decision Nos. 288, 266 (1981).  Section 3(a)(3) is therefore 
inapplicable.

	Section 3(a)(4) excepts “information which, if released, would give advantage to 
competitors or bidders.”  In this instance, you inform us that HUD has not yet granted the 
housing authority's application for funds for this development project, and you contend 
that the release of this information prior to such award could “give advantage to 
competitors.”

	This office has consistently construed section 3(a)(4) narrowly, requiring a 
showing of some specific actual or potential harm in a particular competitive situation.  
See, e.g., Open Records Decision Nos. 233 (1980); 222 (1979); 203, 184 (1978); 170 
(1977). There is no “competitive situation” involved here.  You advise that although 
several developers received the proposal documents only one actually submitted a 
proposal.  Since only one developer is seeking this contract, there are no “competitors” 
who could gain an advantage from the release of this information.  Compare Open 
Records Decision No. 170 (1977) (release of bids not required while bid negotiations 
being conducted and bidders could submit additional information pertaining to their bids, 
because “competition” still involved and other bidders could gain advantage); Open 
Records Decision No. 46 (1974) (identities of those who submitted bids not required 
before last day of bidding).  We therefore conclude that section 3(a)(4) is inapplicable.

	Section 3(a)(11) excepts from disclosure under the Open Records Act:

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.

	This section protects information in the custody of a governmental body only to 
the extent that it consists of “advice, opinions and recommendations.”  Open Records 
Decision Nos. 313 (1982); 273 (1981); 239 (1980).  We have examined the cover letter 
and the enclosures, and we conclude that only a very small portion of these materials 
may be characterized as advice, opinion and recommendation and may therefore be 
withheld.  The remainder of the materials -- everything that is not marked -- must be 
released.

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