January 28, 2008

Mr. James G. Nolan

Assistant General Counsel

Texas Comptroller of Public Accounts

P.O. Box 13528

Austin, Texas 78711-3528

OR2008-01274

Dear Mr. Nolan:

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# 300461.

The Texas Comptroller of Public Accounts (the "comptroller") received a request for the entire audit file for a specified cigar and tobacco products tax audit for HEB Grocery Company L.P., as well as copies of the manufacturer's records and reports required to be filed with the comptroller regarding six specified companies. You state that you have provided a portion of the requested information to the requestor. You claim that the submitted information is excepted from disclosure under section 552.103 of the Government Code. You also state that releasing the submitted information may implicate the proprietary interests of several third parties. Accordingly, you have notified Conwood Company, L.L.C. ("Conwood"), Lane Limited ("Lane"), National Tobacco Company, L.P. ("National Tobacco"), Swedish Match North America, Inc. ("Swedish Match"), Swisher International, Inc. ("Swisher"), and U.S. Smokeless Tobacco Brands, Inc. ("U.S. Smokeless") of this request for information and of their opportunity to submit arguments to this office. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 allows a governmental body to rely on an interested third party to raise and explain the applicability of the exception to disclosure in certain circumstances). We have received arguments from Conwood, Swisher, and U.S. Smokeless. We have considered the submitted arguments and reviewed the submitted information. ⁽¹⁾

The comptroller claims the submitted information is subject to section 552.103 of the Government Gode, which 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 sufficient to establish the applicability of section 552.103 to the information that it seeks to withhold. To meet this burden, the governmental body must demonstrate: (1) that litigation was pending or reasonably anticipated on the date of its receipt of the request for information and (2) that the information at issue is related to that litigation. See Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479 (Tex. App.-- Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); see also Open Records Decision No. 551 at 4 (1990). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. Id. We note that contested cases conducted under the Administrative Procedure Act (the "APA"), chapter 2001 of the Government Code, are considered litigation for purposes of section 552.103. See Open Records Decision No. 588 at 7 (1991).

In this instance, you indicate that the submitted information relates to a contested administrative hearing to which the comptroller is a party. You state that you have received the requestor's "Petition for Redetermination of Cigar and Tobacco Products Tax" and "Statement of Grounds," and that these documents "are the functional equivalent of initial pleadings." You also state, and have provided documentation demonstrating, that the comptroller received these documents prior to the comptroller's receipt of this request for information, and that a hearing is pending. Therefore, based on your representations and our review of the information at issue, we find that the comptroller reasonably anticipated litigation on the date of its receipt of this request. We also find that the information at issue is related to the anticipated litigation. We therefore conclude that the comptroller may withhold the submitted information under section 552.103 of the Government Code. ⁽²⁾

We note, however, that once information has been obtained by all parties to the anticipated litigation through discovery or otherwise, no section 552.103 interest exists with respect to that information. See Open Records Decision Nos. 349 (1982), 320 (1982). We also note that section 552.103 is no longer applicable to this information once the related litigation concludes. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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,

Allan D. Meesey

Assistant Attorney General

Open Records Division

ADM/eeg

Ref: ID# 300461

Enc. Submitted documents