 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 11, 2009 Mr. George E. Hyde Denton, Navarro, Rocha & Bernal 2517 North Main Avenue San Antonio, Texas 78212 OR2009-01818 Dear Mr. Hyde: 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# 334658. Bandera County (the "county"), which you represent, received three requests from the same requestor for information related to septic system permits, a specified grant, and county commissioners' court minutes. You claim the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted representative samples of information. (1) Initially, we note that Exhibit A consists of notices and minutes of meetings of the county commissioners' court. Notices and minutes of a governmental body's public meetings are specifically made public under provisions of the Open Meetings Act, chapter 551 of the Government Code. See Gov't Code §§ 551.022 (minutes and tape recordings of open meeting are public records and shall be available for public inspection and copying on request to governmental body's chief administrative officer or officer's designee), 551.041 (governmental body shall give written notice of date, hour, place, and subject of each meeting), 551.043 (notice of meeting of governmental body must be posted in place readily accessible to general public for at least 72 hours before scheduled time of meeting). As a general rule, the exceptions to disclosure found in the Act do not apply to information that other statutes make public. See Open Records Decision Nos. 623 at 3 (1994), 525 at 3 (1989). Therefore, the county must release the meeting notices and minutes in Exhibit A in accordance with the Open Meetings Act. We address your arguments under section 552.103 of the Government Code for the remaining information. Section 552.103 provides in pertinent 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 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 county 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 governmental body received the request, 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 county must meet both prongs of this test for information to be excepted under 552.103(a). You state, and provide documentation showing, the requestor filed a civil lawsuit against several entities and individuals, including the county attorney in her official capacity. The lawsuit, styled Rogge v. Bandera Falls Property Owners Ass'n, Case No. SA-07-CA-996-OG-JWP, was filed in the United States District Court for the Western District of Texas, San Antonio Division, on October 9, 2008. Therefore, we find the county was involved in pending litigation when it received the present request for information. Furthermore, you state the lawsuit relates to the information at issue. Based on these representations and our review, we agree the information at issue relates to the pending litigation. Therefore, section 552.103 is generally applicable to the remaining information. We note, however, the requestor appears to have already seen or had access to most 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 ORD 551 at 4-5. If the opposing party has seen or had access to information that is related to the 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). Thus, the information the requestor has seen or to which he has already had access to may not be withheld under section 552.103. Otherwise, the county may withhold the remaining information under section 552.103. Further, the applicability of section 552.103(a) ends once the litigation has concluded or is no longer anticipated. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982). In summary, the county must release the meeting notices and minutes in Exhibit A in accordance with the Open Meetings Act. To the extent the requestor has not seen or had access to the remaining information, it may be withheld under section 552.103 of the Government Code. 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, Jordan Hale Assistant Attorney General Open Records Division JH/jb Ref: ID# 334658 Enc. Submitted documents cc: Requestor (w/o enclosures)
1. We assume that the "representative sample" of records submitted to this office is truly representative
of the requested records as a whole. See Open Records Decisions 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 that those records contain substantially different types of information than that submitted to this
office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |