March 17, 2004

Ms. Vicki Faulkner
City Secretary
City of Celina
302 West Walnut Street
Celina, Texas 75009

OR2004-2014

Dear Ms. Faulkner:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 197728.

The City of Celina (the "city") received a request for several categories of information relating to the city's certificate of convenience and necessity ("CCN"), city tariffs, a proposed municipal utility district, and related topics. You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information.⁽¹⁾

Initially, we note that the submitted information includes city ordinances and an order of the Collin County Commissioners' Court. Because laws and ordinances are binding on members of the public, they are matters of public record and may not be withheld from disclosure under the Act. See Open Records Decision Nos. 551 at 2-3 (1990) (laws or ordinances are open records), 221 at 1 (1979) ("official records of the public proceedings of a governmental body are among the most open of records"). Thus, the city may not withhold the marked ordinances or order under section 552.103 and must release this information to the requestor.

We next note that the submitted records include information estimating the expenditure of public funds by the city. Section 552.022 of the Government Code provides in relevant part that "all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate" are public and may not be withheld unless it is expressly confidential under other law. Gov't Code § 552.022(a)(5). Although you assert the submitted information may be withheld pursuant to section 552.103 of the Government Code, this section is a discretionary exception to disclosure that protects the governmental body's interests and is therefore not other law that makes information expressly confidential for purposes of section 552.022(a). See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive section 552.103); see also Open Records Decision No. 522 at 4 (1989) (discretionary exceptions in general). Therefore, the information that is subject to section 552.022 may not be withheld under section 552.103 of the Government Code. Because you do not contend, and our review does not indicate, that these records contain information the release of which is prohibited by other law, section 552.022 requires the city to release these documents, which we have marked.

We turn now to your arguments regarding the remaining submitted information, which is not subject to section 552.022. Section 552.103 provides in part:

(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). A government body has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated on the date the government body receives the request for information, and (2) the information at issue is related to that litigation. See Thomas v. Cornyn, 71 S.W.3d 473, 487 (Tex. App.--Austin 2002, no pet.); Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 588 (1991). For purposes of section 552.103(a), this office considers a contested case under the Texas Administrative Procedure Act ("APA"), Government Code chapter 2001, to constitute "litigation." Open Records Decision No. 588.

In this instance, you inform us that "on December 17, 2003, the Texas Commission on Environmental Quality granted Celina's request for hearing and remanded the matter to the State Office of Administrative Hearings to conduct a contested case hearing under the Administrative Procedures Act." Thus, we conclude that the city has shown that litigation, in the form of a contested case under the APA, was pending in this matter prior to the receipt of the present request for information. Furthermore, we have reviewed the remaining submitted information and find that it relates to the pending litigation for purposes of section 552.103(a). Therefore, the city may generally withhold the remaining submitted information pursuant to section 552.103.

However, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information to which all parties in the pending suit have had access is not excepted from disclosure under section 552.103(a), and it must be disclosed. You state that "[n]either the opposing party nor the requestor has previously seen or had access to any information that Celina seeks to withhold under section 552.103, except communications and documents sent by and to the requestor and to the extent these documents are already possessed by the requestor, the request is repetitious and redundant." Section 552.232 of the Government Code outlines procedures a governmental body may follow if the governmental body does not wish to release information again in response to repetitious or redundant requests. However, those procedures only apply if "a requestor [makes] a request for information for which the governmental body has previously furnished copies to the requestor or made copies available to the requestor." Gov't Code § 552.232 (emphasis added). Thus, these procedures are only available if a governmental body receives a second request for information that the governmental body has already supplied to the requestor in response to a previous request under the Act. They are inapplicable when, as here, the requestor makes an initial request for information that the governmental body believes the requestor already possesses. Thus, to the extent all other parties in the pending litigation have previously had access to the remaining submitted information, the city may not withhold such information under section 552.103 and must release such information regardless of whether the city believes the requestor already has copies of such information. We note that, even if the requestor has previously had access to the remaining submitted information, such information may nevertheless be withheld under section 552.103 if there is any other party to the litigation who has not previously had access to the information. We also note that the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

In summary, the marked city ordinances and commissioners' court order must be released along with the information that we have indicated is subject to section 552.022. Under section 552.103, the city may withhold the remaining information to the extent all other parties to the pending contested case hearing have not previously had access to it.

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,

Denis C. McElroy
Assistant Attorney General
Open Records Division
DCM/lmt
Ref: ID# 197728
Enc. Submitted documents

c: Mr. Arthur Val Perkins
Coats, Rose, Yale, Ryman, Lee, P.C.
800 First City Tower
Houston, Texas 77002-6707
(w/o enclosures)

Footnotes

1. In addition to the responsive information, you have submitted records that were created after this request for information was received by the city. Because this information, which we have marked, is not encompassed by this request, we do not address it in this ruling.