 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 10, 2007 Mr. Jaime S. French OR2007-09198A Dear Mr. French: This office issued Open Records Letter No. 2007-09198 (2007) on July 20, 2007. We have examined this ruling and determined that we made an error. Where this office determines that an error was made in the decision process under sections 552.301 and 552.306, and that error resulted in an incorrect decision, we will correct the previously issued ruling. Consequently, this decision serves as the correct ruling and is a substitute for the decision issued on July 20, 2007. See generally Gov't Code 552.011 (providing that Office of Attorney General may issue decision to maintain uniformity in application, operation, and interpretation of the Public Information Act (the "Act")). You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 284399. The City of Schertz (the "city"), which you represent, received a request for 1) "[a]ll records, photographs, audio and video recordings, documents, reports and forms of any kind relating to [two named officers]. Including, but not limited to, any and all employment applications, performance reviews, and public or private complaints of the [named officers]" and 2) "[a]ll data, reports, audio and video recording(s), logs, files, index references, Mobile Data Terminal entries, searches or requests, Automated Report Transmission System entries, searches or requests or other computerized entries, searches or requests, or any other data, documents or information in any form concerning [the named officers]." You state that the city has sought clarification from the requestor regarding the second category. (1) You claim that the submitted information, which is responsive to the first category, is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information. Initially, we note that some of the submitted information is subject to section 552.022 of the Government Code. Section 552.022(a) provides in part that 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 personnel records you submitted to this office include completed evaluations of the named officers. The city must release information subject to section 552.022 unless it is excepted from disclosure under section 552.108 of the Government Code, or is expressly made confidential under other law. See id. You raise section 552.103 of the Government Code. Section 552.103 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. 665 at 2 n.5 (2000) (discretionary exceptions generally). Consequently, the city may not withhold the completed evaluations pursuant to section 552.103 of the Government Code. As you raise no further exceptions against the disclosure of this information, the completed evaluations must be released. We now address your argument under section 552.103 of the Government Code for the 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 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 city 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 city must meet both prongs of this test for information to be excepted under section 552.103(a). You inform us, and provide documentation showing, that a complaint has been filed in the United States District Court, Western District of Texas. You state that the city and the named officers are defendants in the lawsuit and that the anticipated litigation "relates specifically to an alleged incident that occurred in the course of an arrest made while the [named officers] were on duty for the [c]ity." Thus, we agree that the city was involved in litigation on the date it received the present request for information. Furthermore, we find that the information at issue is related to the pending litigation. Therefore, we find that section 552.103 is applicable to the remaining information. We note, however, that 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). 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 city must release the completed evaluations pursuant to section 552.022. The remaining information may be withheld under section 552.103. 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, Loan Hong-Turney Assistant Attorney General Open Records Division LH/jb Ref: ID# 284399 Enc. Submitted documents c: Mr. J. Martzall 16543 Inwood Cove Drive San Antonio, Texas 78248-1924 (w/o enclosures)
1. Accordingly, should the requestor respond to the request for clarification, the city must seek a ruling
from this office before withholding any responsive information from him. See generally Open Records Decision
No. 633 (1999) (providing for tolling of ten-business-day deadline to request attorney general decision while
governmental body awaits clarification). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |