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Office of the Attorney General - State of Texas John Cornyn |
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February 7, 2001 Mr. Robert L. Dillard, III
OR2001-0474 Dear Mr. Dillard: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 143964. The City of Justin (the "city"), which you represent, received a request for the following information: 1. From March 11, 1996 through November 10, 2000, all documents pertaining to the planning, approval, construction, maintenance, and operation of the septic lift station located at 805 West 12th Street, Justin, Texas, and all documents relating to complaints regarding the lift station. 2. From March 11, 1996 through November 10, 2000, all meeting minutes, notes, or other documents of the city Planning and Zoning Committee pertaining to Ridgeview Estates. 3. From March 11, 1996 through November 10, 2000, all City Council meeting minutes, notes or other documents pertaining to Ridgeview Estates. You represent that you have submitted for our review "examples of the types of information sought by the request."(1) You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information. Section 552.103 excepts from disclosure 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. [Information is excepted from disclosure] 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). Section 552.103 was intended to prevent the use of the Act as a method of avoiding the rules of discovery in litigation. Attorney General Opinion JM-1048 at 4 (1989). The litigation exception enables a governmental body to protect its position in litigation by requiring information related to the litigation to be obtained through discovery. Open Records Decision No. 551 at 3 (1990). To show that the litigation exception is applicable, the city must demonstrate that (1) litigation was pending or reasonably anticipated at the time of the request and (2) the information at issue is related to that litigation. See Gov't Code § 552.103(a), (c); see also Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). You assert that litigation involving the city was reasonably anticipated at the time of the request. To demonstrate that litigation is reasonably anticipated, the city must furnish evidence that, at the time of the request, litigation was realistically contemplated and was more than mere conjecture. Gov't Code § 552.103(c); Open Records Decision No. 518 at 5 (1989). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986). This office has found that where a governmental body receives a demand letter from an attorney which makes a demand for payment and threatens suit if payment is not made promptly, litigation may be reasonably anticipated for purposes of section 552.103. Open Records Decision No. 346 at 2 (1982). Prior to the receipt of the present request for information, you represent that the city received a letter dated August 16, 2000 from the requestor, an attorney, who is representing two named individuals. You further state: In that letter, [the requestor] claims damages to his clients' property in the amount of $20,000.00 and states: "This letter is a final attempt to address the issue without embarrassing the City with litigation." The letter also demands: "Payment of legal and appraisal fees incurred to date in the amount of $5,000.00. As you know, legal fees will escalate dramatically if litigation is pursued." We acknowledge that you state that a copy of the above-described claim letter was attached to your correspondence to this office dated November 27, 2000; however, a copy of the letter was not enclosed. Nevertheless, based on your representations, we conclude in this instance that you have demonstrated that the city reasonably anticipated litigation at the time the present request was received by the city. However, with regard to the second prong of the above-stated test, you have not explained or otherwise provided this office documentation that identifies any of the issues in the anticipated litigation. You make only the conclusory assertion that the requested information "is, or may be, related to the threatened litigation." In order to meet its burden that the requested information relates to pending or anticipated litigation, a governmental body must identify the issues in the litigation and explain how the information relates to those issues. Open Records Decision No. 551 at 5 (1990). In this instance, we are unable to conclude based on the limited information provided this office that any of the information responsive to the request relates to the anticipated litigation. Because you have not demonstrated the second prong of the above-stated test, we conclude that the information responsive to the request is not excepted from disclosure under section 552.103 and must be released to the requestor.(2) 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, Michael Garbarino
MG/seg Ref: ID# 143964 Encl. Submitted documents cc: Mr. Jeffrey J. Wolf
Footnotes 1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. 2. We caution that some of the requested information may be confidential by law. See Gov't Code §§ 552.101, 352. However, based on the samples you have submitted, we have no basis for concluding that any of the information responsive to the request is confidential. None of the submitted meeting minutes, for example, are indicated to be of a closed meeting. An audiotape recording or certified agenda of a closed meeting is confidential unless otherwise provided by court order. Gov't Code § 551.104; Open Records Decision No. 495 at 4 (1988). Furthermore, it is a criminal offense to disclose to a member of the public an audiotape recording or certified agenda of a closed meeting. See Gov't Code § 551.146. If you believe that information responsive to the request is confidential and may not lawfully be released, you must challenge this decision in court as outlined below. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |