January 2, 2001

Dr. Richard S. Rafes
Vice Chancellor and General Counsel
University of North Texas
P.O. Box 310907
Denton, Texas 76203-0907

OR2001-0004

Dear Dr. Rafes:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code (the "Act"). Your request was assigned ID # 142808.

The University of North Texas (the "university") received a series of letters relating to an organization's request to display an exhibit on the university campus. You ask whether certain portions of four of the letters constitute requests for public information for the purposes of the Act. In the event that the Act is applicable, you claim that some of the requested information is excepted from disclosure under sections 552.103 and 552.107 of the Act. We have considered the exceptions you claim and have reviewed the referenced letters and representative samples of responsive information that you submitted.⁽¹⁾

Initially, we consider whether the highlighted portions of the letters dated October 10, 12, 16, and 19, 2000, constitute requests for information for the purposes of the Act. Generally, a request for information need not refer to the Act or be addressed to the officer for public information. See Open Records Decision Nos. 497 at 3 (1988), 44 at 2 (1974). As a hyper-technical reading of the Act does not effectuate its purpose, a written communication that reasonably can be judged to be a request for public information constitutes a request for information under the Act. Id. However, the Act does not require a governmental body to answer factual questions, conduct legal research, or create new information in response to a request for information, but does require a governmental body to make a good faith effort to relate a request to the information that it holds. See Open Records Decision Nos. 563 at 8 (1990), 561 at 8-9 (1990), 555 at 1-2 (1990), 534 at 2-3 (1989). Similarly, the Act does not require a governmental body to take affirmative steps to create or obtain information that is not in its possession, so long as no other individual or entity holds that information on behalf of the governmental body that receives the request for it. See Gov't Code § 552.002(a); Open Records Decision Nos. 534 at 2-3 (1989), 518 at 3 (1989). Therefore, we believe that to the extent that each of the four letters seeks information held by the university that was in existence when that letter was received, or poses questions to which the university is capable of responding by providing such information, the university is required to treat those letters as requests for information under the Act.

Having concluded that the Act is applicable, we next address the university's claim under section 552.103 of the Act. Section 552.103 of the Government Code, the "litigation exception," provides in relevant part:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature 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 a political subdivision, as a consequence of the person's office or employment, is or may be a party.

. . .

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

Gov't Code § 552.103(a), (c). The governmental body has the burden of providing relevant facts and documents sufficient to establish the applicability of section 552.103 to the information that it seeks to withhold. To sustain this burden, the governmental body must demonstrate: (1) that litigation was pending or reasonably anticipated on the date of its receipt of the request for information and (2) that the information in question is related to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App. - Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App. - Houston [1^st Dist.] 1984, writ ref'd n.r.e.); see also Open Records Decision No. 551 at 4 (1990). Both prongs of the test must be met in order for information to be excepted from disclosure under section 552.103. Id.

The question of whether litigation reasonably is anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). To establish that litigation reasonably is anticipated, a governmental body must provide this office with "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Id. Among other examples, this office has concluded that litigation reasonably was anticipated where the opposing party took the following objective steps toward litigation: (1) filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), see Open Records Decision No. 336 (1982); (2) hired an attorney who made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open Records Decision No. 346 (1982); and (3) threatened to sue on several occasions and hired an attorney, see Open Records Decision No. 288 (1981).

In this instance, you claim that the information in question relates to anticipated litigation between the university and the organization that proposed to display the exhibit. The requestor seeks access to the information in question on behalf of that organization. You point out that the requestor repeatedly states that the organization intends to pursue litigation if the university does not waive its standard policies and practices with regard to the proposed exhibit. You inform us that, "[g]iven these repeated and unequivocal statements of intent to pursue litigation, the University believes that there is a reasonable anticipation of litigation." Based on your representations, the requestor's letters, and our review of the representative samples of responsive information, we find that the requested information relates to litigation that the university reasonably anticipated when it received the letters dated October 10, 12, 16, and 19, 2000. We therefore conclude that the submitted information is excepted from disclosure under section 552.103 of the Government Code.

In reaching this conclusion, we assume that the university does not seek to withhold, under section 552.103, any information that the opposing party to the anticipated litigation has seen or to which the opposing party already has had access. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties seeking information relating to that litigation to obtain it through discovery procedures. See Open Records Decision No. 551 at 4-5 (1990). If the opposing party to anticipated litigation has seen or had access to information relating to the litigation, through discovery or otherwise, then there is no interest in withholding that information from public disclosure under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). Furthermore, the applicability of section 552.103 ends once the related litigation concludes. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Confidential information must not be released, however, even at the conclusion of the litigation. See Gov't Code §§ 552.007, .101, .352. As we are able to make this determination under section 552.103, we need not consider your claim under section 552.107.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

JWM/er

Ref: ID# 142808

Encl: Submitted documents

cc: Mr. James C. Spencer
General Counsel
Justice for All
P.O. Box 247
Oakley, Kansas 67748
(w/o enclosures)

Footnotes

1. This letter ruling assumes that the representative samples of information which you submitted are truly representative of the responsive information as a whole. This ruling neither reaches nor authorizes the university to withhold any responsive information that is substantially different from the submitted information. See Gov't Code § 552.301(e)(1)(D); Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).
 

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