December 1, 2008

Ms. Helen Valkavich

Assistant City Attorney

City of San Antonio

P.O. Box 839966

San Antonio, Texas 78283

Mr. John Danner

Assistant City Attorney

City of San Antonio

P.O. Box 839966

San Antonio, Texas 78283

OR2008-16319

Dear Ms. Valkavich and Mr. Danner:

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# 328659.

The City of San Antonio (the "city") received a request for information relating to (1) statistics for the last five years regarding the number of dogs reported to the Animal Care Services Department (the "ACS") as being dangerous or vicious, the number of those dogs found to be dangerous or vicious by the ACS, a breakdown by breed of dogs found to be dangerous or vicious by the ACS, and the hearing officer who determined the dog to be dangerous or vicious; (2) the number of members of the Dangerous Animal Determination Board (the "board") and eligibility to become a board member; (3) the members of the board and their qualifications; (4) informational material relating to an ACS determination that a dog is dangerous or vicious; and (5) audiotapes, videotapes, or transcripts pertaining to a proceeding regarding three named individuals and/or a named dog. You claim that the requested information is excepted from disclosure under sections 552.103 and 552.111 of the Government Code. ⁽¹⁾ We have considered the exceptions you claim and reviewed the information you submitted. ⁽²⁾

We first note that, according to one of the submitted documents, "[a] copy of the file has already been provided to [the requestor]." Thus, it appears that some or all of the submitted information has already been released. You do not indicate, however, and we are unable to ascertain the extent to which the information at issue has been released. Accordingly, we must dispose of this issue in the alternative. Thus, to the extent that the submitted information has already been released to the requestor, the city may not now withhold any such information under section 552.103 or section 552.111 of the Government Code. See Gov't Code § 552.007. To the extent that the submitted information has not been released, we will consider your exceptions to disclosure.

Next, we address your assertion that parts 2, 3, and 4 of this request for information require the city to answer questions or perform legal research. We agree that the Act does not require a governmental body to answer factual questions, conduct legal research, or create new information in responding to a request. See Open Records Decision Nos. 563 at 8 (1990), 555 at 1-2 (1990). Likewise, the Act does not require a governmental body to take affirmative steps to create or obtain responsive information that is not in its possession, so long as no other individual or entity holds such information on behalf of the governmental body that received the request for information. See Gov't Code § 552.002(a); Open Records Decision Nos. 534 at 2-3 (1989), 518 at 3 (1989). Nevertheless, a governmental body must make a good-faith effort to relate a request to any responsive information that is within its possession or control. See Open Records Decision No. 561 at 8-9 (1990).

In this instance, the requestor has stated parts 2, 3, and 4 of the request in a manner that should readily enable the city to identify responsive information. However, the city does not appear to have submitted information responsive to parts 2, 3, and 4. We therefore assume that the city has released any other information that is responsive to this request, to the extent that such information existed when the city received the request. If not, then any such information must be released immediately. See Gov't Code §§ 552.221, .301, .302; Open Records Decision No. 664 (2000).

Turning to your exceptions to disclosure, section 552.103 of the Government Code 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 documentation sufficient to establish the applicability of section 552.103 to the information for which it claims this exception. To meet this burden, the governmental body must demonstrate that (1) litigation was pending or reasonably anticipated on the date of its receipt of the request for information and (2) the information at issue is related to the pending or anticipated 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 [1^st Dist.] 1984, writ ref'd n.r.e.). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. See Open Records Decision No. 551 at 4 (1990).

You contend that the submitted information is related to a pending appeal to municipal court from a decision by the board. You state, and have submitted documentation reflecting, that the appeal was pending when the city received this request for information. Based on your representations and the submitted documentation, we find that you have demonstrated that the city was a party to pending litigation when it received this request. We also find that the submitted information is related to the pending litigation. We therefore conclude that the city may withhold the submitted information under section 552.103.

In reaching this conclusion, we assume that the opposing party in the pending litigation has not seen or had access to any of the submitted 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 relating to pending 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). We further note that the applicability of section 552.103 ends once the related litigation concludes. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

In summary: (1) to the extent that the submitted information has already been released to the requestor, any such information may not be withheld under section 552.103 or section 552.111 of the Government Code and must be released; and (2) to the extent that it has not been released to the requestor, the city may withhold the submitted information 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 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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/ma

Ref: ID# 328659

Enc: Submitted information

c: Requestor

(w/o enclosures)

Footnotes

1. Although you raise section 552.101 of the Government Code in conjunction with the attorney work product privilege, we note that the proper exception under which to claim this privilege is section 552.111. Section 552.101 does not encompass discovery privileges. See Open Records Decision No. 676 at 1-3 (2002).

2. We understand you to state that only the information in Attachment 2 is at issue and that the documents in Attachment 3 were submitted in support of your arguments against disclosure. Accordingly, we do not determine whether the documents in Attachment 3 are excepted from disclosure.

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