 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 4, 2007 Mr. Brad Young OR2007-00127 Dear Mr. Young: 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# 268597. The Village of Bee Cave (the "village"), which you represent, received a request for information related to a named officer, a village police department speed measuring device, and a traffic citation issued to the requestor. You state the village does not have information responsive to portions of the request. (1) You claim that the submitted information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. (2) Initially, we note the submitted information includes a court-filed document. Section 552.022 of the Government Code provides in relevant part the following: (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: . . . (17) information that is also contained in the public court record[.] Gov't Code § 552.022(a)(17). Section 552.022(a)(17) makes this court-filed document expressly public. Therefore, the village may withhold this information, which we have marked, only to the extent it is made confidential under other law. Although the village raises sections 552.103 and 552.108 of the Government Code for this information, these exceptions are discretionary and, thus, do not make information confidential. See, e.g., 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. 586 (1991) (governmental body may waive section 552.108), 542 at 4 (1990) (statutory predecessor to section 552.103 may be waived), 522 at 4 (1989) (discretionary exceptions in general). Accordingly, the village may not withhold the submitted court-filed document pursuant to sections 552.103 or 552.108. However, we note the court-filed document includes information subject to section 552.130 of the Government Code. (3) Because section 552.130 constitutes other law for purposes of section 552.022, we will address the applicability of this exception to the court-filed document. Section 552.130 provides that information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency is excepted from public release. Gov't Code § 552.130(a)(1), (2). The village must withhold the Texas motor vehicle record information we have marked in the court-filed document under section 552.130. We now address your arguments for the remaining submitted information. Section 552.103 of the Government Code 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 village 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, 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 village must meet both prongs of this test for information to be excepted under section 552.103(a). You state the requestor "is a defendant in a criminal prosecution for a speeding ticket he received in the [village]." You inform us that this prosecution "is currently pending as Cause No. 202035-01 in the [village municipal court]." You inform us, and provide documentation showing, that this litigation was pending on the date the village received the request for information. Our review of the records at issue also shows that they are related to this litigation for purposes of section 552.103(a). Therefore, the village may generally withhold the remaining submitted information pursuant to section 552.103. (4) We note, however, that once the information has been obtained by all parties to the pending litigation, no section 552.103(a) interest exists with respect to that information. Open Records Decision No. 349 at 2 (1982). We also note that the applicability of section 552.103(a) ends when the litigation has concluded. Attorney General Opinion MW-575 (1982) at 2; Open Records Decision Nos. 350 at 3 (1982), 349 at 2 (1982). In summary, the village must release the marked court-filed document pursuant to section 552.022 of the Government Code, except that the village must withhold the information marked in this document pursuant to section 552.130 of the Government Code. The village may withhold the remaining submitted information 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, Ramsey A. Abarca Assistant Attorney General Open Records Division RAA/eb Ref: ID# 268597 Enc. Submitted documents c: Mr. Charles Walters 6227 Greenway Forest Lane Houston, Texas 77088 (w/o enclosures)
1. The Act does not require a governmental body to disclose information that did not exist at the time the
request was received, nor does it require a governmental body to prepare new information in response to a
request. Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San
Antonio 1978, writ dism'd); Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 2-3
(1986), 342 at 3 (1982), 87 (1975); see also Open Records Decision Nos. 572 at 1 (1990), 555 at 1-2
(1990), 416 at 5 (1984).
We assume that the 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.
The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987),
470 (1987).
As we are able to resolve this under section 552.103, we do not address your other arguments for
exception of the submitted information. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |