May 8, 2001

Ms. Amanda Crawford
Public Information Coordinator
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548

OR2001-1879

Dear Ms. Crawford:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 146342.

The Office of the Attorney General (the "Attorney General") received a request for copies of the pleadings filed in a specified case, various supporting documents for the subject case, and supporting documents for other cases that may be filed by the Attorney General against oil and gas companies. You state that you have released to the requestor over 200 pages of responsive information. You further state that you do not have responsive information for some of the categories of information requested.⁽¹⁾ You claim that the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.107, and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the representative sample of information submitted to us.⁽²⁾

You claim that the submitted information is excepted from disclosure pursuant to section 552.103 of the Government Code. Section 552.103 was intended to prevent the use of the Public Information Act (the "Act") as a method of avoiding the rules of discovery in litigation. See Attorney General Opinion JM-1048 at 4 (1989). The purpose of section 552.103 is to protect a governmental body's position in litigation by forcing parties to obtain information relating to the litigation through the discovery process. See Open Records Decision No. 551 (1990). Further, section 552.103 only applies where the litigation involves or is expected to involve the governmental body which is claiming the exception. See Open Records Decision No. 392 (1983) (finding predecessor to section 552.103 only applicable to governmental body who has the litigation interest).

Section 552.103 provides in 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. The Attorney General has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); 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). The Attorney General must meet both prongs of this test for information to be excepted under section 552.103(a).

You argue that the requested information relates to pending and reasonably anticipated litigation. You have submitted to this office the petition in the pending case of State v. Exxon, No. 2001-00437 (295 Dist. Ct., Harris County, Tex.). We conclude that you have demonstrated that litigation is currently pending. To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). In the context of anticipated litigation by a governmental body, the concrete evidence must reflect that litigation is "realistically contemplated." See Open Records Decision No. 518 at 5 (1989); see also Attorney General Opinion MW-575 (1982) (finding that investigatory file may be withheld from disclosure if governmental body attorney determines that it should be withheld pursuant to section 552.103 and that litigation is "reasonably likely to result"). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). You state that the Attorney General intends to bring additional suits against other defendants on the same issue as the pending Exxon litigation. We conclude that the Attorney General has demonstrated that litigation is reasonably anticipated. Therefore, the first prong of section 552.103 has been satisfied. Furthermore, after reviewing the submitted information, we find that you have adequately explained how it relates to the subject matter of the pending and anticipated litigation. Therefore, we conclude that the second prong of section 552.103 has been satisfied. Accordingly, the Attorney General may withhold the requested information from disclosure pursuant to section 552.103 of the Government Code, except as discussed below with regard to information subject to section 552.022 of the Government Code.⁽³⁾

Section 552.022 of the Government Code makes certain information expressly public. Such information is "not excepted from required disclosure under [chapter 552 of the Act] unless [it is] expressly confidential under other law." Gov't Code § 552.022(a). The requested information includes information within the following section 552.022 categories:

(a)(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by section 552.108;

(a)(3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body;

(a)(5) all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate;

(a)(12) final opinions, including concurring and dissenting opinions, and orders issued in the adjudication of cases; and

(a)(17) information that is also contained in a public court record.

See Gov't Code § 552.022(a). These section 552.022 documents, which we have marked, must be released to the requestor, unless they are "expressly confidential under other law." One of the submitted documents, which is titled "Proposed Exxon Litigation Budget," appears to be a working paper used to estimate the expenditure of public funds by a governmental body. See id. § 552.022(a)(5). If the estimate has been completed, the working paper is also encompassed by section 552.022.

We now consider whether the Attorney General has established that the section 552.022 documents are confidential under other law. Sections 552.103, 552.107(1) and 552.111 are discretionary exceptions that do not constitute other law for purposes of section 552.022. See Open Records Decisions Nos. 630 at 4 (1994) (governmental body may waive section 552.107(1)); 551 (1990) (governmental body may waive section 552.103); 473 (1987) (governmental body may waive section 552.111). Thus, the Attorney General may not withhold the section 552.022 documents under any of these three exceptions.

You also argue that the responsive information may be withheld under the attorney work product privilege, the consulting expert privilege and the attorney-client privilege. The attorney work product privilege is found in Rule 192.5 of the Texas Rules of Civil Procedure. The consulting expert privilege is found in Rule192.3 of the Texas Rules of Civil Procedure. The attorney client privilege is found in Texas Rule of Evidence 503. Recently, the Texas Supreme Court held that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." In re City of Georgetown, No. 00-0453, 2001 WL 123933, at *8 (Tex. Feb. 15, 2001). Thus, we will determine whether the section 552.022 information is confidential under Rule 192.5, Rule 192.3, or Rule 503.

We begin with Rule 192.5 and the attorney work product privilege. An attorney's core work product is confidential under Rule 192.5. Core work product is defined as the work product of an attorney or an attorney's representative developed in anticipation of litigation or for trial that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories. See Tex. R. Civ. P. 192.5(a), (b)(1). Accordingly, in order to withhold attorney core work product from disclosure under Rule 192.5, a governmental body must demonstrate that the material was 1) created for trial or in anticipation of litigation and 2) consists of an attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories. Id. The first prong of the work product test, which requires a governmental body to show that the information at issue was created in anticipation of litigation, has two parts. A governmental body must demonstrate that 1) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue, and 2) the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. See National Tank v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A "substantial chance" of litigation does not mean a statistical probability, but rather "that litigation is more than merely an abstract possibility or unwarranted fear." Id. at 204. The second prong of the work product test requires the governmental body to show that the documents at issue contain the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories. See Tex. R. Civ. P. 192.5(b)(1). A document containing core work product information that meets both prongs of the work product test is confidential under Rule 192.5, provided the information does not fall within the purview of the exceptions to the privilege enumerated in Rule 192.5(c). See Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ).

After reviewing your arguments and the section 552.022 documents, we conclude that one of the documents contains confidential core work product. This document is the "Proposed Exxon Litigation Budget" that appears to have been prepared by an attorney. If the estimate of the budget is completed, and this document is thereby subject to section 552.022(a)(5) as noted above, we conclude that the working paper may be withheld from disclosure as confidential work product pursuant to Rule 192.5 of the Texas Rules of Civil Procedure. Otherwise, the proposed budget is excepted from disclosure pursuant to section 552.103, as discussed above.

Even though some of the documents at issue do not consist of attorney work product, you urge that the core work product privilege nevertheless applies because the selection, compilation and organization of the particular documents was performed by attorneys, or their agents, as part of the legal analysis of the anticipated litigation. Releasing these documents would reveal the selections and compilations, which, you argue, "would reveal attorney mental impressions and strategies regarding both the pending and anticipated litigation and represent the attorney's implied or express opinion regarding the importance or necessity of specific facts in proving the alleged violations." The Texas Supreme Court has stated that the organization of an attorney's litigation files, as well as the decision as to what to include in it, necessarily reveals the attorney's thought processes concerning the case. See National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458 (Tex. 1993). Thus, after review of your arguments and the section 552.022 documents at issue, we agree that, in this case, the attorney's decision to include certain documents in the litigation file reveals the attorney's thought processes concerning the litigation. We have marked the documents the attorney general may withhold to protect attorney work product.

Next, we consider your claim that one of the section 552.022 documents must be withheld from disclosure pursuant to Rule 192.3(e) of the Texas Rules of Civil Procedure. The identity of a consulting expert is confidential under Rule 192.3(e). A party to litigation is not required to disclose the identity, mental impressions, and opinions of consulting experts. See Tex. R. Civ. P. 192.3(e). The document reveals the identity of a consulting expert. You state that "[i]t is unknown at this time which of our contracted experts will testify at trial." Therefore, you may withhold from disclosure the identity of this consulting expert pursuant to Rule 192.3(e) but release the remaining information in that document. See In re City of Georgetown, 2001 WL 123933 at *11. As you did not raise any other privileges or exceptions for the remaining section 552.022 information, it must be released.

In summary, the Attorney General may withhold from disclosure the requested information pursuant to section 552.103 of the Government Code with the following exceptions. The "Proposed Exxon Litigation Budget" contains attorney core work product information and, thus, may be withheld from disclosure pursuant to Rule 192.5 of the Texas Rules of Civil Procedure if the estimate of that budget is complete. Otherwise, the "Proposed Exxon Litigation Budget" is excepted from disclosure based on section 552.103. Certain marked documents may be withheld from disclosure pursuant to Rule 192.5 because their release would reveal attorney mental processes in selecting the documents for the litigation file. One of the section 552.022 documents in part reveals the identity of a consulting expert. The Attorney General may withhold from disclosure information that identifies this consulting expert pursuant to Rule 192.3(e) of the Texas Rules of Civil Procedure. The Attorney General must release all other section 552.022 documents to the requestor. We have marked the documents accordingly.

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,

Kay H. Hastings
Assistant Attorney General
Open Records Division

KHH/RJB/seg

Ref: ID# 146342

Encl. Marked documents

cc: Mr. David W. Scott
406 Keenland Drive
Georgetown, Texas 78626
(w/o enclosures)

 

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Footnotes

1. It is implicit in several provisions of the Public Information Act (the "Act") that the Act applies only to information already in existence. See Gov't Code §§ 552.002, .021, .227, .351. The Act does not require a governmental body to prepare new information in response to a request. See Attorney General Opinion H-90 (1973); see also Open Records Decision Nos. 87 (1975), 342 at 3 (1982), 416 at 5 (1984), 452 at 2-3 (1986), 555 at 1-2 (1990), 572 at 1 (1990). However, a governmental body must make a good faith effort to relate a request to information which it holds. See Open Records Decision No. 561 at 8 (1990).

2. 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, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

3. In light of our conclusion under section 552.103, we need not address your other claims for the information not subject to section 552.022(a) of the Government Code. Once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. See Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982).

 

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