 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 15, 2004 Ms. Jennifer Soldano
OR2004-0335 Dear Ms. Soldano: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 194475. The Texas Department of Transportation (the "department") received a request for copies of appraisals and an offer related to a specified parcel of property. You claim that the requested information is excepted from disclosure under sections 552.105 and 552.111 of the Government Code and Rule 192.3 of the Texas Rules of Civil Procedure. We have considered the exceptions you claim and reviewed the submitted information. We have also considered comments submitted to this office by the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released).(1) Initially, we note that most of the submitted information is subject to section 552.022 of the Government Code. Section 552.022 provides, in pertinent 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). The submitted information contains completed appraisal reports made for the department, which are made expressly public by section 552.022, unless they are expressly made confidential under other law. Sections 552.105 and 552.111 of the Government Code, discretionary exceptions under the Act, do not constitute "other law" for purposes of section 552.022. See Open Records Decision Nos. 663 (1999) (governmental body may waive Gov't Code § 552.111), 564 (1990) (governmental body may waive statutory predecessor to Gov't Code § 552.105). Accordingly, the department may not withhold this information under section 552.105 or 552.111 of the Government Code. However, you contend that these licensed appraiser's reports constitute consulting expert reports that may be withheld from disclosure under the consulting expert privilege found in Rule 192.3(e) of the Texas Rules of Civil Procedure.(2) 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). A "consulting expert" is defined as "an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert." Tex. R. Civ. P. 192.7. You explain that when acquiring land, the department obtains expert advice from licensed appraisers in preparing for possible eminent domain litigation. Further, you state that the department does not anticipate calling these experts as witnesses at this time. Based on your representations, we agree that the appraisal reports constitute opinions of a consulting expert. Accordingly, the department may withhold this information 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). Next, we address your assertion of section 552.105 of the Government Code for the remaining information not subject to section 552.022. Section 552.105 provides as follows: (1) the location of real or personal property for a public purpose prior to public announcement of the project; or (2) appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property. Gov't Code § 552.105. This provision is designed to protect a governmental body's planning and negotiating position with regard to particular transactions. Open Records Decision Nos. 564 (1990), 357 (1982), 310 (1982). Information excepted under section 552.105 that pertains to such negotiations may be excepted so long as the transaction is not complete. Open Records Decision No. 310 (1982). 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. Open Records Decision No. 564 (1990). In this instance, you state that the department has made a good faith determination that the information you seek to withhold relates to the appraisal or purchase price of real property that the department intends to purchase. Further, you explain that the release of this information may harm the department's ability to negotiate. Based on your representations and our review of the remaining information, we conclude that the department may withhold the information we have marked under section 552.105 of the Government Code. In summary, we conclude that: 1) the department may withhold the appraisal reports we have marked under Rule 192.3 of the Texas Rules of Civil Procedure; and 2) the department may withhold the remaining information under section 552.105 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. Vern Gibson
Footnotes 1. We note that a written communication that reasonably can be judged to be a request for public information is a request for information under the Public Information Act (the "Act"). See Open Records Decision No. 44 at 2 (1974). 2. 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). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |