January 7, 2010

Ms. Mary Salluce

Open Government Attorney

Texas Department of Family & Protective Services

P.O. Box 149030

Austin, Texas 78714-9030

OR2010-00337

Dear Ms. Salluce:

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# 366503 (DFPS internal tracking nos. 2009-0849 and 2009-0864).

The Texas Department of Family and Protective Services (the "department") received two requests from the same requestor for the requestor's personnel records and monitoring reports relating to a named entity. You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered your arguments, including your response to our questions under section 552.303 of the Government Code, ⁽¹⁾ and have reviewed the information you submitted. ⁽²⁾

Initially, we address your statement that some of the requested information is available on the department's website. We note that section 552.228 of the Government Code requires a governmental body to provide a requestor with a "suitable copy" of requested public information. Gov't Code § 552.228(a). We also note that "[a] public information officer does not fulfill his or her duty under the Act by simply referring a requestor to a governmental body's website for requested public information." Open Records Decision No. 682 at 7 (2005). Instead, section 552.221 of the Government Code requires a governmental body "to either provide the information for inspection or duplication in its offices or to send copies of the information by first class United States mail." Id.; see Gov't Code § 552.221(b). Thus, the department must provide access to or copies of the responsive information you state is on the department's website to the requestor; however, we note that a requestor may agree to accept information on a governmental body's website in fulfillment of a request for information under the Act. See ORD 682 at 7.

Next, we address the department's obligations under section 552.301 of the Government Code. Section 552.301 prescribes procedures that a governmental body must follow in asking this office to determine whether requested information is excepted from public disclosure. See Gov't Code § 552.301(a). Pursuant to section 552.301(e), a governmental body must submit a copy of the request for information to this office not later than the fifteenth business day after the date of its receipt of the request. See id. § 552.301(e)(1)(B). Section 552.302 provides that if a governmental body fails to comply with section 552.301, the requested information is presumed to be subject to required public disclosure and must be released, unless there is a compelling reason to withhold any of the information. See id. § 552.302; City of Dallas v. Abbott, 279 S.W.3d 806 (Tex. App.--Amarillo 2007, pet. granted); Simmons v. Kuzmich, 166 S.W.3d 342 (Tex. App.--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ).

You inform us that the department received the request for the information submitted as Exhibit 4 on or about October 23. As of the date of this decision, the department has not provided this office with a copy of the request for Exhibit 4. ⁽³⁾ Thus, because the department did not comply with section 552.301 in requesting a ruling on Exhibit 4, that information is presumed to be public under section 552.302. This statutory presumption can generally be overcome when information is confidential by law or third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). Although the department seeks to withhold Exhibit 4 under section 552.103 of the Government Code, that section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Gov't Code § 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); Open Records Decision No. 665 at 2 n.5 (discretionary exceptions generally). As such, a claim under section 552.103 does not provide a compelling reason for non-disclosure under section 552.302.

We also note that Exhibit 4 is subject to section 552.022 of the Government Code. Section 552.022(a)(1) provides for required public disclosure of "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body," unless the information is excepted from disclosure under section 552.108 of the Government Code or expressly confidential under other law. Gov't Code § 552.022(a)(1). Exhibit 4 consists of a completed investigation made by the department. The department does not claim an exception for Exhibit 4 under section 552.108. Section 552.103 is a discretionary exception that may be waived and is not other law that makes information confidential for the purposes of section 552.022(a)(1). Therefore, the department may not withhold any of the information in Exhibit 4 under section 552.103.

Section 552.101 of the Government Code is a confidentiality provision, however, for purposes of section 552.022(a)(1), and the applicability of this exception can provide a compelling reason for non-disclosure under section 552.302. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. ⁽⁴⁾ This exception encompasses information that other statutes make confidential. Section 40.005 of the Human Resources Code authorizes the department to adopt rules for the purpose of preserving the confidentiality of information concerning child abuse and neglect and provides in part:

(a) The department shall establish and enforce rules governing the custody, use, and preservation of the department's records, papers, files, and communications.

(b) The department shall prescribe safeguards to govern the use or disclosure of information relating to a recipient of a department service or to an investigation the department conducts in performing its duties and responsibilities. The safeguards must be consistent with the purposes of the department's programs and must comply with applicable state and federal law and department rules.

Hum. Res. Code § 40.005. In accordance with section 40.005, the department promulgated section 745.8485 of title 40 of the Administrative Code to make child care facility license investigations confidential. Section 745.8485 provides in part:

(c) The following information relating to a completed investigation of child abuse or neglect is confidential and not available to the general public, except as provided under this chapter and applicable federal or state law:

(1) The description of the allegation of child abuse or neglect;

(2) The identity of the person making the allegation; and

(3) The files, reports, records, communications, audiotapes, videotapes, and working papers used or developed during an investigation.

40 T.A.C. § 745.8485(c). You represent to this office that Exhibit 4 is related to an investigation of alleged child abuse or neglect, so as to be confidential under section 745.8485(c)(3). You also state that Exhibit 4 is not subject to disclosure under provisions of chapter 745 of title 40 of the Texas Administrative Code that govern information that must be maintained in the department's monitoring files. See id. §§ 745.8481 (information in monitoring file is for most part available to general public), 745.8487 (department may release to public only those portions of abuse or neglect investigation record that must be filed in monitoring file), 745.8489 (except for certain specified information, department will maintain all records of abuse or neglect investigation separate from monitoring file). Based on your representations and our review of the information at issue, we find that Exhibit 4 falls within the scope of section 745.8485(c). The requestor does not appear to have a right of access to Exhibit 4 under section 745.8491 of title 40. See id. § 745.8491. We therefore conclude that the department must withhold Exhibit 4 under section 552.101 of the Government Code in conjunction with section 745.8485 of title 40 of the Texas Administrative Code.

Next, we address your claim under section 552.103 for the rest of the submitted information. This exception 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). The governmental body has the burden of providing relevant facts and documentation sufficient to establish the applicability of section 552.103 to the information that it seeks to withhold under 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 information submitted as Exhibit 3 is related to a pending lawsuit that the requestor filed against the department and the Texas Health and Human Services Commission. You inform us that the lawsuit involves alleged employment discrimination. You indicate that the department was a party to the lawsuit when it received this request for Exhibit 3. Based on your representations and our review of the information at issue, we find that Exhibit 3 is related to pending litigation to which the department was a party when it received this request. We therefore conclude that section 552.103 is generally applicable to Exhibit 3.

We note, however, that once information relating to litigation has been obtained by the opposing party, through discovery or otherwise, there is no interest in withholding such information from public disclosure under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties to obtain information relating to litigation through discovery procedures. See ORD 551 at 4-5. Therefore, information that has been obtained from or provided to the opposing party in pending litigation may not be withheld under section 552.103. In this instance, Exhibit 3 includes the requestor's state employment application, which she has already seen. Therefore, the department may not withhold the employment application. The department may withhold the remaining information in Exhibit 3 under section 552.103 of the Government Code. We note that the applicability of this exception ends once the related litigation concludes. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

In summary: (1) the department must withhold Exhibit 4 under section 552.101 of the Government Code in conjunction with section 745.8485 of title 40 of the Texas Administrative Code; and (2) except for the requestor's employment application, the department may withhold Exhibit 3 under section 552.103 of the Government Code. As the department claims no other exception to disclosure, the employment application must be released. ⁽⁵⁾

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, toll free, at (888) 672-6787.

Sincerely,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/cc

Ref: ID# 366503

Enc: Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. See Gov't Code § 552.303(c)-(d) (if attorney general determines that information in addition to that required by Gov't Code § 552.301 is necessary to render decision, written notice of that fact shall be given to governmental body and requestor, and governmental body shall submit necessary additional information to attorney general not later than seventh calendar day after date of receipt of notice).

2. This letter ruling assumes that the submitted representative samples of information are truly representative of the requested information as a whole. This ruling neither reaches nor authorizes the department to withhold any information that is substantially different from the submitted information. See Gov't Code §§ 552.301(e)(1)(D), .302; Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).

3. Our description of that request is based on other information the department provided in requesting this decision.

4. Unlike other exceptions to disclosure, this office will raise section 552.101 on behalf of a governmental body, because the Act prescribes criminal penalties for the release of confidential information. See Gov't Code §§ 552.007, .352; Open Records Decision No. 325 at 2 (1982).

5. We note that the requestor's employment application contains information that is or may be encompassed by exceptions that protect personal privacy. The requestor has a right of access, however, to her own private information under section 552.023(a) of the Government Code. Should the department receive another request for these same records from a person who would not have a right of access to this requestor's private information, the department should resubmit these records and request another decision. See Gov't Code §§ 552.301(a), .302.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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