August 9, 2007

Ms. Ylise Janssen
Senior School Law Attorney
Austin Independent School District
1111 West 6^th Street
Austin, Texas 78703-5399

OR2007-10197

Dear Ms. Janssen:

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# 286247.

The Austin Independent School District (the "district") received a request for the personnel file of a specified former district employee. You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. ⁽¹⁾ 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:

(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 personnel records you submitted to this office include completed employee evaluations pertaining to the named individual. The district 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 claim that this information is subject to section 552.103 of the Government Code. Section 552.103 of the Government Code 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 district may not withhold the completed evaluations pursuant to section 552.103 of the Government Code. As you have not raised any other exceptions to disclosure for the completed evaluations, they must be released.

We will now address your section 552.103 of the Government Code argument for the remaining submitted information. 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 district 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 district 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.

You inform us, and have provided documentation showing, a lawsuit styled Lindsay v. Austin Independent School District, case number A07CA406-LY, is currently pending in district court. We further find that the information at issue relates to the pending litigation for purposes of section 552.103(a). Based on your arguments and our review of the information, we find that litigation was pending as of the date the district received the instant request and that the submitted information relates to the pending litigation. Accordingly, the district may generally withhold the remaining submitted information under section 552.103 of the Government Code.

We note, however, that the opposing party in the litigation has seen or had access to the majority of the remaining information. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties to obtain information that is related to litigation through discovery procedures. See Open Records Decision No. 551 at 4-5 (1990). If the opposing party has seen or had access to information that is related to litigation, through discovery or otherwise, then there is no interest in withholding such information from public disclosure under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). Therefore, to the extent that the opposing party in the pending litigation has seen or had access to the information at issue, such information is not excepted from disclosure under section 552.103 and must be released. We note that the applicability of section 552.103 ends once the related litigation has been concluded. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

We note that some of the information that may not be withheld under section 552.103 may be protected under section 552.117 of the Government Code. ⁽²⁾ Section 552.117(a)(1) excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024 of the Government Code. See Gov't Code § 552.117(a)(1). However, information subject to section 552.117(a)(1) may not be withheld from disclosure if the current or former employee made the request for confidentiality under section 552.024 after the request for information at issue was received by the governmental body. Whether a particular piece of information is public must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). In this case, you do not inform us nor provide documentation showing that the employee whose information is at issue timely elected confidentiality under section 552.024. Thus, if the employee at issue timely elected to keep her personal information confidential, you must withhold this information, which we have marked, under section 552.117(a)(1) of the Government Code. The district may not withhold this information under section 552.117(a)(1) if the employee at issue did not make a timely election.

We also note that the submitted information contains a TECAT score report. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. This section encompasses information protected by other statutes. Section 552.101 encompasses section 21.048 of the Education Code, which provides in part:

(c-1) The results of an examination administered under this section are confidential and are not subject to disclosure under [the Act] unless:

(1) the disclosure is regarding notification to a parent of the assignment of an uncertified teacher to a classroom as required by Section 21.057; or

(2) the educator has failed the examination more than five times.

Educ. Code § 21.048(c-1). ⁽³⁾ Therefore, to the extent that the information at issue consists of results of an examination administered under section 21.048 of the Education Code, the marked information is confidential under section 21.048 of the Education Code and must be withheld under section 552.101 of the Government Code. However, if the information does not pertain to an examination administered under section 21.048, then the results of the examination may not be withheld under section 552.101 of the Government Code.

Finally, we note that a portion of the submitted information is excepted under section 552.130 of the Government Code. 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 agency must withhold the Texas driver's license information we have marked under section 552.130 of the Government Code.

In summary, the completed evaluations that are subject to section 552.022 of the Government Code must be released. With the exception of information that has either been obtained from or provided to the opposing party, the remaining information may be withheld under section 552.103 of the Government Code. If the employee at issue timely elected to keep her personal information confidential, you must withhold this information, which we have marked, under section 552.117(a)(1) of the Government Code. To the extent that submitted TECAT score report consists of results of an examination administered under section 21.048 of the Education Code, the agency must withhold the information we have marked under section 552.101 of the Government Code in conjunction with section 21.048 of the Education Code. The agency must withhold the driver's license information we have marked under section 552.130 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,

Paige Savoie

Assistant Attorney General

Open Records Division

PS/ma

Ref: ID# 286247

Enc. Submitted documents

c: Ms. Jennifer Jacobson

2202 West North Loop Boulevard, #229

Austin, Texas 78756

(w/o enclosures)

Footnotes

1. We note that you have redacted a social security number in the submitted information pursuant to section 552.147 of the Government Code. See Gov't Code 552.147(b) (authorizing governmental body to redact living person's social security number without the necessity of requesting a decision from the attorney general under the Act).

2. The Office of the Attorney General will raise mandatory exceptions like sections 552.101, 552.117, and 552.130 of the Government Code on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

3. We note that subsection 21.048(c-1), as added to section 21.048 by the Eightieth Legislature took effect June 15, 2007. See Act of May 28, 2007, 80^th Leg., R.S., S.B. 9, § 4 (to be codified at Educ. Code Ann. § 21.048(c-1)).

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