 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 21, 2009 Ms. Renee Byas General Counsel Houston Community College 3100 Main Houston, Texas 77002 OR2009-00830 Dear Ms. Byas: 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# 333692. The Houston Community College (the "college") received a request for a specified report prepared by external counsel and presented to the college. You claim the submitted information is excepted from disclosure under sections 552.103, 552.107, and 552.111 of the Government Code. (1) We have considered the exceptions you claim and reviewed the submitted representative sample of information. (2) Initially, we must address the college's procedural obligations under the Act. Section 552.301 prescribes the procedures a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(b), a governmental body must ask for a decision from this office and state the exceptions that apply within ten business days after receiving the written request. Gov't Code § 552.301(a), (b). In this instance, you did not claim an exception under sections 552.107 and 552.111 of the Government Code until the fifteen-business-day deadline. Thus, we find the college failed to comply with the requirements of section 552.301 with respect to its claims under sections 552.107 and 552.111. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption the requested information is public and must be released, unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. Id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ); Open Records Decision No. 319 (1982). A compelling reason exists when third-party interests are at stake or when information is confidential under other law. Open Records Decision No. 150 (1977). Sections 552.107 and 552.111 of the Government Code are discretionary exceptions to disclosure that protect a governmental body's interests and may be waived. See Open Records Decisions No. 676 at 10-11 (2002) (attorney-client privilege under section 552.107(1) may be waived), 663 at 5 (1999) (governmental body may waive section 552.111); see also Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions in general). In failing to comply with section 552.301, the college has waived its claims under sections 552.107 and 552.111 of the Government Code; therefore, the college may not withhold any of the submitted information under these exceptions. However, we will address your timely-raised claim under section 552.103 to the submitted information. Next, we note portions of the submitted information are subject to section 552.022 of the Government Code, which provides in pertinent part: 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. . .; (2) the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a governmental body; (3) information in an account, voucher, or contract relating to the receipt or expenditure of public funds by a governmental body[.] Gov't Code § 552.022(a)(1)-(3). Section 552.103 of the Government Code, which you raise for this information, is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See id. § 552.007; Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive Gov't Code § 552.103); see also ORD 665. As such, section 552.103 is not "other law" that makes information confidential for the purposes of section 552.022. Therefore, the college may not withhold the information we have marked that is subject to section 552.022 under section 552.103. We will, however, address your claim under section 552.103 with regard to the remaining information not subject to section 552.022. Section 552.103 provides in pertinent 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 to show the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation was pending or reasonably anticipated on the date that the governmental body received the request for information, and (2) the information at issue is related to that litigation. Thomas v. Cornyn, 71 S.W.3d 473, 487 (Tex. App.--Austin 2002, no pet.); 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). A governmental body 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 demonstrate that litigation is reasonably anticipated, the governmental body must furnish concrete evidence that litigation involving a specific matter is realistically contemplated and is more than mere conjecture. Id. Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. (3) Open Records Decision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). In this instance, you state the college reasonably anticipates litigation based on the "[requestor]'s previous actions," specifically the fact the requestor has previously filed a "formal internal [c]omplaint with the [c]ollege." However, you have not explained how the college's formal complaint process is considered to be litigation for the purposes of section 552.103. See Open Records Decision No. 588 (1991) (discussing factors used by attorney general in determining whether administrative proceeding not subject to Administrative Procedure Act may be considered to be litigation); see also Gov't Code § 552.301(e)(1) (requiring governmental body to explain applicability of raised exception). Furthermore, beyond a general statement the college anticipates litigation in this instance based on the requestor's complaint and previous actions in relation to her appeals, you have failed to demonstrate the requestor has taken any objective step toward filing litigation against the college. Thus, we find you have failed to establish the college reasonably anticipated litigation when it received the instant request for information. Accordingly, we conclude none of the information at issue may be withheld under section 552.103. We note a portion of the submitted information, including that which is subject to section 552.022, may be excepted from disclosure under section 552.117 of the Government Code. (4) 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. Id. § 552.117(a)(1). Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). The college may only withhold information under section 552.117(a)(1) if the individual at issue elected confidentiality under section 552.024 prior to the date on which the request for this information was made. If the individual timely elected, the college must withhold the personal information we have marked under section 552.117(a)(1) of the Government Code. The college may not withhold this information under section 552.117(a)(1), however, if this individual did not make a timely election to keep her information confidential. To the extent the social security number in the submitted information is not excepted under section 552.117, it may be excepted under section 552.147 of the Government Code. Section 552.147 provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Gov't Code § 552.147. However, the requestor has a right to her own social security number. See generally id. § 552.023(b) (governmental body may not deny access to person to whom information relates, or that person's representative, solely on grounds that information is considered confidential by privacy principles). Therefore, the college may withhold the marked social security number, that does not belong to the requestor, pursuant to section 552.147 of the Government Code. (5) In summary, the college must withhold the personal information we have marked under section 552.117(a)(1) of the Government Code, if the individual at issue timely elected confidentiality. Regardless of whether section 552.117 applies, the college may withhold the marked social security number pursuant to section 552.147 of the Government Code. The remaining information must be released to the requestor. This letter ruling is limited to the particular information 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 information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General at (512) 475-2497. Sincerely, Katherine M. Kroll Assistant Attorney General Open Records Division KMK/eeg Ref: ID# 333692 Enc. Submitted documents c: Requestor (w/o enclosures)
1. Although you initially raised section 552.113 of the Government Code, we understand you to raise
section 552.103 of the Government Code, as this is the proper exception for "information relating to litigation."
We also note you initially raised sections 552.101 and 552.102 of the Government Code; however, you do not
present any arguments against disclosure under these sections. Thus, we assume you no longer urge these
exceptions. See Gov't Code §§ 552.301, .302.
2. We assume the "representative sample" of records submitted to this office is truly representative of
the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records
letter does not reach, and therefore does not authorize the withholding of, any other requested records to the
extent those records contain substantially different types of information than that submitted to this office.
3. Among other examples, this office has concluded litigation was reasonably anticipated where the
opposing party took the following objective steps toward litigation: (1) filed a complaint with the Equal
Employment Opportunity Commission, see Open Records Decision No. 336 (1982); (2) hired an attorney who
made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open
Records Decision No. 346 (1982); and (3) threatened to sue on several occasions and hired an attorney, see
Open Records Decision No. 288 (1981).
4. The Office of the Attorney General will raise mandatory exceptions on behalf of a governmental body,
but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470
(1987).
5. Section 552.147(b) of the Government Code authorizes a governmental body to redact a living
person's social security number from public release without the necessity of requesting a decision from this
office under the Act.
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