 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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December 12, 2003 Ms. Kimberly Mickelson
OR2003-8964 Dear Ms. Mickelson: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 192600. The City of Seabrook (the "city"), which you represent, received a request for the complete personnel file of the requestor's client, any other documents relating to this individual, and all job descriptions for all positions to which the individual has been assigned over the past three years. You state that the city has previously provided the requestor with some of the requested information, and we understand you to indicate that the requestor has been notified of this fact pursuant to section 552.232 of the Government Code. See Gov't Code 552.232 (governmental body shall certify to requestor that copies of all or part of requested information, as applicable, were previously furnished to requestor). Thus, we need not address the portion of the request seeking the previously provided information in this ruling. See Gov't Code § 552.301. You claim that the remaining requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and have reviewed the submitted information. We first note that the submitted information includes completed evaluations, which generally must be released pursuant to section 552.022(a)(1) of the Government Code. Section 552.022 makes "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body" public information unless expressly made confidential under other law or "except as provided by [s]ection 552.108[.]" Gov't Code § 552.022(a)(1). You do not raise section 552.108. Section 552.103 is a discretionary exception under the Public Information Act (the "Act") and therefore, is not "other law" that makes the completed evaluations confidential. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.-Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision No. 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). Therefore, the city may not withhold any of the completed evaluations from disclosure under section 552.103 of the Government Code. We now turn to your claim under section 552.103 in relation to the information at issue that is not subject to section 552.022. Section 552.103 provides as follows: (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(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-048 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). A governmental body that raises section 552.103 has the burden of providing relevant facts and documents sufficient to establish the applicability of the exception to the information that it seeks to withhold. To show that the litigation exception is applicable, the city must demonstrate that (1) litigation was pending or reasonably anticipated on the date it received the request and (2) the information at issue is related to that litigation. See Gov't Code § 552.103(a), (c); 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). You advise and provide documentation showing that the requestor's client has filed a lawsuit against the city. The lawsuit involves allegations of retaliatory and harassing conduct by the city in relation to the employment of the requestor's client. You state that the litigation is currently pending. Based on your representations and the information you provided, we find that the city has established that civil litigation was pending when it received this request for information. Further, we conclude that you have demonstrated that the information at issue relates to the pending litigation for purposes of section 552.103. However, we note that the opposing party in the litigation has had access to some of the submitted documents. When the opposing party in the litigation has seen or had access to any of the information at issue, there is no section 552.103(a) interest in withholding that information from the requestor, and it must be released. Open Records Decision Nos. 349 (1982), 320 (1982).(1) The city may withhold the remaining requested information to which the requestor's client has not had access under section 552.103.(2) In summary, with regard to the information not previously provided to the requestor, the city must release the completed evaluations pursuant to section 552.022(a)(1). The city must also release the information to which the requestor's client has previously had access. The remaining submitted information may be withheld under section 552.103. 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, Kristen Bates
c: Mr. Daniel J. Kasprzak
Footnotes 1. We note that while portions of such information would ordinarily be excepted from disclosure under sections 552.101 and 552.130, and possibly under section 552.117(a)(1), the requestor has a special right of access pursuant to section 552.023 of the Government Code to such information pertaining to his client. Gov't Code § 552.023 (person or person's authorized representative has special right of access to information relating to person and protected from public disclosure by laws intended to protect that person's privacy interests). Because information to be released under section 552.023 is confidential with respect to the general public, if the city receives a future request for this information from an individual other than the requestor or his client, the city should again seek our decision. 2. Further, the applicability of section 552.103(a) ends once the litigation concludes. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |