|
Office of the Attorney General - State of Texas John Cornyn |
|
May 1, 2002 Ms. Janice Mullenix
OR2002-2274 Dear Ms. Mullenix: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162163. The Texas Department of Transportation (the "department") received a request for the following categories of information: 1. All appraisal documents on all land already purchased on the Rosedale expansion project located West of Interstate 35 E. 2. All appraisal documents on all land already purchased on the Rosedale expansion project located East of Interstate 35 E. 3. The original offer price for each parcel purchased. 4. The actual price paid for each parcel purchased. You have submitted to this office as responsive to the request three types of documents: 1) "Title Company's Closing Statements," 2) correspondence from the department to the property owner, in which the department makes a cash offer for the property and invites counteroffers (the "offer letters"), and 3)"Real Estate Appraisal Reports." You contend that these records, a representative sample of which you submitted to this office, are excepted from disclosure pursuant to sections 552.105 and 552.111 of the Government Code and Rule 192.3 of the Texas Rules of Civil Procedure.(1) Initially, we note that some of the records you submitted to this office consist of information subject to section 552.022 of the Government Code. Section 552.022 provides in pertinent part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108; [and] . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] Gov't Code § 552.022(a)(1), (3). The department must release the completed appraisal reports and the closing statements, unless these documents are expressly made confidential under other law.(2) You contend that the submitted appraisal reports and the closing statements are excepted from disclosure pursuant to sections 552.105 and 552.111 of the Government Code. However, sections 552.105 and 552.111 are discretionary exceptions under the Public Information Act and do not constitute "other law" for purposes of section 552.022. See Open Records Decision Nos. 663 (1999) (governmental body may waive section 552.111), 564 (1990) (governmental body may waive statutory predecessor to section 552.105).(3) Accordingly, we do not address your section 552.105 and 552.111 claims with respect to the completed appraisal reports or the closing statements. However, you contend that the completed appraisal reports constitute a consulting expert reports that may be withheld from disclosure under the consulting expert privilege, which is found in Rule 192.3(e) of the Texas Rules of Civil Procedure. 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, 53 S.W.3d 328 (Tex. 2001). 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). You explain that when acquiring land, the department obtains expert advice from licensed appraisers in preparing for possible eminent domain litigation. You further state that the department does not anticipate calling these experts as witnesses at this time. We agree that the completed appraisal reports constitute opinions of a consulting expert. Accordingly, the department may withhold the submitted appraisal reports under Rule 192.3(e) of the Texas Rules of Civil Procedure. See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). However, because you have not demonstrated that the "Title Company's Closing Statement" is excepted from public disclosure under Rule 192.3(e), we conclude that the department must release these closing statements to the requestor pursuant to section 552.022(a)(3). We now address your contention that the department's offer letters are excepted from disclosure pursuant to section 552.105(2) of the Government Code, which excepts from disclosure information relating to "appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property." Section 552.105 is designed to protect a governmental body's planning and negotiating position with regard to particular transactions. See Open Records Decision Nos. 564 (1990), 357 (1982), 310 (1982). Information excepted from disclosure pursuant to section 552.105 that pertains to such negotiations may be excepted so long as the transaction relating to those negotiations is not complete. See Open Records Decision No. 310 (1982). However, this office has concluded that information about specific parcels of land acquired in advance of others to be acquired for the same project could be withheld where this information would harm the governmental body's negotiating position with respect to the remaining parcels. See Open Records Decision No. 564 at 2 (1990). A governmental body may withhold information "which, if released, would impair or tend to impair [its] 'planning and negotiating position in regard to particular transactions.'" Open Records Decision No. 357 at 3 (1982) (quoting Open Records Decision No. 222 (1979)). The question of whether specific information, if publicly released, would impair a governmental body's planning and negotiation position in regard to particular transactions is a question of fact. Accordingly, this office will accept a governmental body's good faith determination in this regard, unless the contrary is clearly shown as a matter of law. See Open Records Decision No. 564 (1990). You state that the department has made a good faith determination that the information at issue pertains to the appraisal or purchase price of real property that the department intends to purchase. You explain that the request relates to parcels of land that the department has acquired as part of its ongoing process of acquiring property for a project "designed to widen Business US 287 from 4 to 6 lanes." You further explain that the department "has acquired approximately 150 of 220 parcels it needs to acquire." Based on your representations and our review of the offer letters, we find that you have demonstrated the applicability of section 552.105 to those letters. Accordingly, the department may withhold the offer letters pursuant to section 552.105 of the Government Code. In summary, the department may withhold the completed appraisal reports pursuant to Rule 192.3(e) of the Texas Rules of Evidence and the offer letters pursuant to section 552.105 of the Government Code. The department must release the "Title Company's Closing Statements" to the requestor. 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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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, V.G. Schimmel
c: Mr. L. Clifford Davis
Footnotes 1. In reaching our conclusion here, 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 No. 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. 2. We note that you have not raised section 552.108 for the appraisal reports. See Gov't Code § 552.022(a)(1). 3. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 551 (1990) (statutory predecessor to section 552.103 serves only to protect governmental body's position in litigation and does not itself make information confidential), 522 at 4 (1989) (discretionary exceptions in general). Discretionary exceptions, therefore, do not constitute "other law" that makes information confidential. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |