 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 22, 2006 Mr. Vic Ramirez
OR2006-09675 Dear Mr. Ramirez: 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# 257305. The Lower Colorado River Authority (the "authority") received a request for twenty-four categories of information related to the Lower Brushy Creek Wastewater Treatment Plant Project (the "project"), certain property owned by the requestor's client and other persons, and other matters. You inform us that the authority will redact the social security numbers pursuant to section 552.147 of the Government Code.(1) You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.102, 552.103, 552.105, 552.107, 552.111, 552.117, 552.136, and 552.137 of the Government Code.(2) We have considered the exceptions you claim and reviewed the submitted representative sample of information.(3) We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released). Initially, we note that some of the submitted documents are made expressly public under 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; . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body; . . . (5) 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[.] Gov't Code § 552.022(a)(1), (3), (5). Information that is subject to section 552.022 must be released, unless the information is expressly confidential under other law or unless information encompassed by section 552.022(a)(1) is excepted from disclosure under section 552.108 of the Government Code.(4) You assert that the documents at issue are excepted from disclosure under sections 552.101, 552.103 and 552.105 of the Government Code. We note, however, that sections 552.103 and 552.105 are discretionary exceptions to public disclosure that protect the governmental body's interests and may be waived. 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 Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 564 (1990) (governmental body may waive statutory predecessor to section 552.105). As such, sections 552.103 and 552.105 do not qualify as other laws that make information confidential for the purposes of section 552.022. Therefore, the authority may not withhold this information, which we have marked, under section 552.103 or section 552.105. However, you also claim that the documents submitted in Exhibit C, some of which are subject to section 552.022, are excepted from disclosure under section 552.101 of the Government Code. Section 552.101 is "other law" for purposes of section 552.022. Furthermore, portions of the remaining documents subject to section 552.022 are confidential under section 552.130 of the Government Code, which is also "other law" for purposes of section 552.022.(5) Accordingly, we will consider the applicability of these exceptions. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information protected by other statutes. Section 191.004 of the Natural Resources Code provides the following: (a) Information specifying the location of any site or item declared to be a state archeological landmark under Subchapter D of this chapter is not public information. (b) Information specifying the location or nature of an activity covered by a permit or an application for a permit under this chapter is not public information. (c) Information specifying details of a survey to locate state archeological landmarks under this chapter is not public information. Nat. Res. Code § 191.004(a)-(c). You state that the documents in Exhibit C "describe and contain information 'specifying details of a survey to locate state archaeological landmarks" under the Antiquities Code, chapter 191 of the Natural Resources Code. Based on your representations and our review of the submitted information, we find that the authority must withhold Exhibit C under section 552.101 of the Government Code in conjunction with section 191.004 of the Natural Resources Code. The remaining information that is subject to section 552.022 includes Texas motor vehicle record information. Section 552.130 of the Government Code provides the following: (a) Information is excepted from the requirements of Section 552.021 if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or] (2) a motor vehicle title or registration issued by an agency of this state[.] Gov't Code § 552.130(a). We have marked the Texas motor vehicle record information that must be withheld under section 552.130. We next address your claim under section 552.103 of the Government Code for the remaining information that is not subject to section 552.022. Section 552.103 provides in relevant part 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). The authority 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 was pending or reasonably anticipated, and (2) the information at issue is related to that litigation. 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, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The authority must meet both prongs of this test for information to be excepted under section 552.103(a). To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. Open Records Decision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). This office has also concluded that litigation was reasonably anticipated when the potential opposing party filed a complaint with the Equal Employment Opportunity Commission. Open Records Decision No. 336 (1982). On the other hand, this office has determined that if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). Further, the fact that a potential opposing party has hired an attorney who makes a request for information does not establish that litigation is reasonably anticipated. Open Records Decision No. 361 (1983). You inform us that the remaining information relates to the "acquisition, siting and permitting of the proposed [project.]" You have provided a letter submitted by the requestor to the authority, prior to the present request, stating that his client "currently anticipates initiation of litigation proceedings adverse to the [authority] and certain other individuals and/or entities." The requestor's brief to this office acknowledges that "[t]he [authority's] act of taking property from [the requestor's client] against the wishes of its partners would certainly require the [authority] to initiate some form of litigation." Having reviewed the submitted information and considered the submitted arguments, we conclude that the authority reasonably anticipated litigation on the date it received the request for information. Our review of the information at issue also shows that it is related to the anticipated litigation for purposes of section 552.103(a). We therefore conclude that the authority may withhold the remaining information pursuant to section 552.103.(6) Generally, 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 that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, 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 authority may withhold Exhibit C under section 552.101 of the Government Code in conjunction with section 191.004 of the Natural Resources Code. The Texas motor vehicle record information that we have marked must be withheld under section 552.130 of the Government Code. Other than information that is subject to section 552.022 of the Government Code, which we have marked, the authority may withhold the remaining information that has not been obtained by all parties to the anticipated litigation under section 552.103 of the Government Code. The remaining submitted information must be released 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 Office of the Attorney General 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. 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, L. Joseph James
c: P. Jason Collins
Footnotes 1. We note that section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act. 2. Although you also raise section 552.024 of the Government Code, we note that section 552.024 is not an exception to public disclosure under chapter 552 of the Government Code. Rather, this section permits a current or former official or employee of a governmental body to choose whether to allow public access to certain information relating to the current or former official or employee that is held by the employing governmental body. See Gov't Code § 552.024. 3. 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 Nos. 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. 4. We note that the authority does not claim an exception to disclosure under section 552.108. 5. The Office of the Attorney General will raise a mandatory exception like section 552.130 on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). 6. As our conclusion under section 552.103 encompasses all of the remaining information that the authority seeks to withhold, we need not address your other arguments against disclosure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |