 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 3, 2007 Mr. Jesús Toscano, Jr. OR2007-00066 Dear Mr. Toscano: 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# 266876. The City of Dallas (the "city") received a request for ten categories of information related to a particular discrimination claim against the city. The request was received from the United States Department of Justice (the "department"). You claim that the submitted information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. (1) Initially, we note that the submitted representative sample includes information that is subject to section 552.022 of the Government Code. Section 552.022(a) provides in part: (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 records consist of completed evaluations and a completed report made by the city that are expressly public under section 552.022(a)(1) unless excepted under section 552.108 of the Government Code or confidential under other law. The city only asserts that this information is excepted from disclosure under section 552.103 of the Government Code. However, section 552.103 is a discretionary exception and, as such, is not other law for purposes of section 552.022. 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. 665 at 2 n.5 (2000) (discretionary exceptions generally). Therefore, the city may not withhold the completed evaluations or report under section 552.103. We note, however, that the completed report contains the social security number of a city peace officer. Section 552.117(a)(2) of the Government Code excepts from disclosure the home address, home telephone number, social security number, and family member information of a peace officer, regardless of whether the peace officer complies with sections 552.024 or 552.1175. Gov't Code § 552.117(a)(2). Therefore, the city must withhold the social security number we have marked under section 552.117(a)(2). The completed report also contains a Texas motor vehicle identification number ("VIN"). Section 552.130 excepts from public disclosure information that relates to a motor vehicle title or registration issued by an agency of this state. See Gov't Code § 552.130(a)(2). Thus, the city must withhold the marked VIN under section 552.130. We now address your arguments for the remaining records. Section 552.103 of the Government Code 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 governmental 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 governmental body received the request for information, 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). A governmental body must meet both prongs of this test for information to be excepted under section 552.103(a). The question of whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). To establish that litigation is reasonably anticipated, a governmental body must provide this office with "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Id. This office has found that a pending EEOC complaint indicates litigation is reasonably anticipated. Open Records Decision Nos. 386 at 2 (1983), 336 at 1 (1982), 281 at 1 (1981). In this instance, you state, and provide documentation showing, that a city employee filed an EEOC discrimination complaint against the city under Title VII of the Civil Rights Act of 1964. See Civil Rights Act of 1964; 42 U.S.C. § 2000e-2(a)(1). The EEOC investigated the charge, and upon conclusion of its investigation the EEOC found that there was reasonable cause to believe that the city had discriminated against the employee. The EEOC and the city then attempted to reconcile the charge through conciliation. When conciliation between the EEOC and the city failed, the EEOC, as required by statute, referred the charge to the department for enforcement. 42 U.S.C. § 2000e-5 (f)(1). Upon referral, and as part of its enforcement functions, the department sent the request at issue to the city. We note that the department enforces Title VII against state and local government employers, but individuals who believe that they have been victims by any employer of discrimination prohibited by Title VII must first file a charge of discrimination with the EEOC in order to protect their rights. Once the EEOC investigates the charge and finds that there is reasonable cause to believe that discrimination occurred, the EEOC attempts to conciliate the charge with the respondent. After a finding of reasonable cause and attempts to conciliate fail, the EEOC must refer the charge to the department for enforcement. Id.; see also 28 C.F.R. § 1601.29 (2006). Thus, after referral, the complaint is no longer directly handled by the EEOC. Upon referral from the EEOC, the department may resolve the charge by obtaining a settlement, initiating litigation on the charge or dismissing the charge and issuing a notice of right to sue to the complainant. See 28 C.F.R. § 42.610 (2006). After referral, the complainant in the discrimination charge maintains the same rights that he or she had while the charge was in the hands of the EEOC. The complainant maintains the right to sue the respondent if the department determines that litigation is not warranted and the right to join in any suit filed by the department. See 42 U.S.C. § 2000e-5 (f)(1) (stating that if civil action is not filed by the department, then the complainant must be given notification of their right to sue). Therefore, we find that the mandatory referral of the discrimination charge from EEOC to the department constitutes a continuation of the EEOC complaint process. Accordingly, litigation pertaining to the discrimination charge remains anticipated for the purposes of section 552.103 despite enforcement of the charge being referred from EEOC to the department. We also find that the remaining information relates to the anticipated litigation. However, once the information at issue has been obtained by all parties to the anticipated litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to the information. See Open Records Decision Nos. 349 (1982), 320 (1982). Thus, any information that has either been obtained from or provided to all other parties in the anticipated litigation is not excepted from disclosure under section 552.103(a) and must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has concluded or is no longer anticipated. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982). In summary, the city must release the completed evaluations pursuant to section 552.022(a)(1) of the Government Code. With the exception of the social security number which must be withheld under section 552.117(a)(2) and the VIN which must be withheld under section 552.130, the city must also release the marked completed report. The remaining information may be withheld under section 552.103 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, 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, Justin D. Gordon Assistant Attorney General Open Records Division JDG/sdk Ref: ID# 266876 Enc. Submitted documents c: Ms. Ester Gwen Tamburo Civil Rights Division, Employment Litigation Section U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 (w/o enclosures)
1. 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 us.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |