 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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May 23, 2003 Mr. Lou Bright
OR2003-3495 Dear Mr. Bright: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 181579. The Texas Alcoholic Beverage Commission (the "commission") received a request for information related to a named permittee. You claim that the requested information is excepted from disclosure under section 552.108 of the Government Code and 192.5 of the Texas Rules of Civil Procedure. We have considered the exceptions you claim and reviewed the submitted information. Initially, you inform us that the submitted investigative report is subject to section 552.022 of the Government Code. Section 552.022 provides, in relevant part, as follows: (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[.] Gov't Code § 552.022(a)(1). In this instance, you inform us the requested information pertains to a completed investigation. Therefore, as section 552.022(a)(1) makes the submitted report expressly public, the commission may withhold this information only to the extent it is made confidential under other law or is otherwise protected by section 552.108 of the Government Code. You assert section 552.108 of the Government Code. You also claim that the submitted report is excepted from disclosure under 192.5 of the Texas Rules of Civil Procedure. 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). Thus, we will address your claimed exceptions. 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. 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 contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories. 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). Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ). You state that "the commission is seeking the cancellation of all permits held by [the requestor's client] due to a November 30, 2002 aggravated breach of the peace which occurred on the premises." See Alco. Bev. Code § 28.11 (commission may suspend mixed beverage permit if it finds that breach of peace has occurred on licensed premises and breach not beyond control of permittee and resulted from permittee's improper supervision). You also state that the submitted report "was created by agents of the commission with the intention of beginning both criminal and civil litigation under that Administrative Procedures Act" and that "the report forms the basis of administrative charges that will, in due course of events, be presented to the State Office of Administrative Hearings by attorneys employed by [the commission]." Upon consideration of your assertions and our review of the submitted information, we find that 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 that the commission 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. We also find that the documents at issue contain an attorney's or an attorney's representative's mental impressions, opinions, conclusions, or legal theories. Accordingly, you may withhold the commission's report in its entirety pursuant to 192.5 of the Texas Rules of Civil Procedure. Next, you assert section 552.108 of the Government Code in regard to the submitted Houston Police Department Incident Report. Section 552.108 states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). You have provided this office with correspondence from the Houston Police Department stating that the information at issue directly pertains to a pending criminal investigation and prosecution. Therefore, we believe the release of the incident report at issue "would interfere with the detection, investigation, or prosecution of crime," and the commission may withhold the incident report in its entirety. Id.; see Open Records Decision Nos. 474 (1987), 372 (1983) ("law-enforcement exception" may be invoked by any proper custodian of information that relates to criminal incident). In summary, we conclude that: 1) you may withhold the commission's report pursuant to 192.5 of the Texas Rules of Civil Procedure; and 2) you may withhold the submitted incident report under section 552.108 of the Government Code. 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 Dep't of Pub. 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, W. Montgomery Meitler
c: Mr. Ronald A. Monshaugen
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |