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Office of the Attorney General - State of Texas John Cornyn |
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June 8, 2001 Mr. Greg S. Boling
OR2001-2409 Dear Mr. Boling: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 148157. The City of Highland Village (the "city"), which you represent, received a written request for the following information: Copies of all minutes (special and regular sessions) May 2000 - Sept. 2000. Copies of supporting documents filed by Barb Ross and David Kriel concerning newsletter worksessions - (July 25 meeting). You contend that the requested information is excepted from required public disclosure pursuant to section 552.103 of the Government Code. Section 552.301 of the Government Code dictates the procedure that a governmental body must follow when it seeks a decision from the attorney general as to whether requested information falls within an exception to disclosure. Among other requirements, the governmental body must submit to this office within fifteen business days of receipt of an information request "a copy of the specific information requested, or . . . representative samples of the information if a voluminous amount of information was requested." Gov't Code § 552.301(e)(1)(D). Otherwise, the requested information "is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code § 552.302. You have not submitted to this office a copy of the requested meeting minutes. We therefore conclude that all of the requested minutes that were taken during public meetings are presumed to be public under section 552.302 and therefore must be released to the requestor in their entirety. But see Gov't Code § 551.104(c) ("certified agenda" of executive session available for public inspection only by court order); Open Records Decision No. 495 (1988) (Open Meetings Act removes certified agendas and tapes of executive sessions from review by attorney general under Public Information Act). We now address your section 552.103 arguments with regard to the requested information you submitted to this office. Section 552.103 of the Government Code is commonly referred to as the "litigation exception." Under section 552.103(a) and (c), the governmental body raising this exception must demonstrate that (1) litigation involving the governmental body was pending or reasonably anticipated at the time of the records request, and (2) the information at issue is related to that litigation. See also University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); 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). A governmental body must meet both prongs of this test for information to be excepted under section 552.103. Although you have demonstrated that litigation against the city is currently pending, we must nevertheless first determine whether the litigation was reasonably anticipated at the time the city received the records request. Gov't Code § 552.103(c). 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). You explain that prior to receiving the records request, the city received a demand letter from an attorney written on behalf of a city council member who had been publicly censored by the city council. The letter alleges that the city council violated the censored city council member's rights of free speech, due process, and equal protection under the law. The letter further states that if the city council did not meet certain conditions, a federal lawsuit would ensue. Given these facts, we conclude that you have demonstrated that litigation involving the city was reasonably anticipated on the date the district received the records request. See Open Records Decision No. 555 (1990). Consequently, you have demonstrated the requirements of the first prong under section 552.103. However, after reviewing the pleadings from the litigation and the records you seek to withhold, we cannot conclude that you have demonstrated how the requested documents "relate" to the litigation for purposes of section 552.103. Although you state that "it is reasonable to assume" that the information at issue could be used in an attempt to discredit one of the city council members named as a defendant in the litigation, you have not explained, nor is it apparent from the information at issue, why such would be the case. The records at issue do not contain information about either the plaintiff's censor or any other issue named in the pleadings, nor does the information contain derogatory information about the defendant city council member. Accordingly, we conclude that you have not met your burden under section 552.103 of the Government Code and that the requested information must be released in its entirety. 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, Stephen P. Agan
SPA/RWP/seg Ref: ID# 148157 Encl. Submitted documents cc: Mr. John D. Baird
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |