 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 8, 2008 Ms. Sara Shiplet Waitt Senior Associate Commissioner Texas Department of Insurance P.O. Box 149104 Austin, Texas 78714-9104 OR2008-10837 Dear Ms. Shiplet Waitt: 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# 318441. The Texas Department of Insurance (the "department") received a request for information related to a named individual. You state that you have released some information. You indicate that the department is withholding information pursuant to the previous determination set forth in Open Records Letter No. 2005-05223 (2005) (previous determination for department under section 552.101 of Government Code in conjunction with section 701.151 of Insurance Code). You claim that the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.111, and 552.137 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. (1) We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released). The department asserts that the submitted information is excepted from disclosure under section 552.103 of the Government Code which provides 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 department 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 department 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). The department 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). When the governmental body is the prospective plaintiff in litigation, the evidence of anticipated litigation must at least reflect that litigation involving a specific matter is "realistically contemplated." See Open Records Decision No. 518 at 5 (1989); see also Attorney General Opinion MW-575 (1982) (investigatory file may be withheld if governmental body's attorney determines that it should be withheld pursuant to Gov't Code § 552.103 and that litigation is "reasonably likely to result"). For purposes of section 552.103(a), this office considers a contested case under the Texas Administrative Procedure Act ("APA"), Government Code chapter 2001, to constitute "litigation." Open Records Decision No. 588 at 7 (1991) (construing statutory predecessor to the APA). You state that the department anticipates initiating litigation under section 4005.101 of the Insurance Code. See Occ. Code § 4005.101. The department has submitted an affidavit from a staff attorney with the Enforcement Division stating that the department's Enforcement Division is currently investigating the individual at issue and once the investigation is complete, the department may need to take administrative action against the individual under the APA. Based upon these representations, we conclude that the department reasonably anticipates litigation. Further, we find that the investigation antedated the request for information, and the information relates to the anticipated litigation. Therefore, the department may withhold the submitted information under section 552.103 of the Government Code. Generally, however, 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). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. (2) Further, the applicability of section 552.103(a) ends once the litigation has been concluded. (3) 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). If the governmental body does not file suit over 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, Olivia A. Maceo Assistant Attorney General Open Records Division OM/jb Ref: ID# 318441 Enc. Submitted documents c: Mr. Read A. Koury Grosz & Associates, P.C. 440 Louisiana Street, Suite 250 Houston, Texas 77002 (w/o enclosures)
1. You indicate that the department sought and received clarification of the request from the requestor.
See Gov't Code § 552.222(b) (stating that if information requested is unclear to governmental body or if a large
amount of information has been requested, governmental body may ask requestor to clarify or narrow request,
but may not inquire into purpose for which information will be used).
Although this information contains an e-mail address, the requestor excludes e-mail addresses from
his request. Accordingly, this information is not responsive to the instant request. Information that is not
responsive need not be released and we do not address such information in this ruling.
As our ruling is dispositive, we need not address the department's remaining arguments against
disclosure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |