 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
February 19, 2010 Ms. Shirley Thomas Senior Assistant General Counsel Dallas Area Rapid Transit P.O. Box 660163 Dallas, Texas 75266-0163 OR2010-02517 Dear Ms. Thomas: 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# 372207 (DART ORR 7081). Dallas Area Rapid Transit ("DART") received a request for any complaints filed by a named individual on a specified date, all reports and investigative results associated with the complaints, and personnel manuals for the last five years. You state DART has released some information to the requestor. You claim the submitted information is excepted from disclosure under sections 552.101 and 552.103 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note a portion of the submitted information is currently at issue in a lawsuit pending against the Office of the Attorney General: Dallas Area Rapid Transit v. Greg Abbott, Attorney Gen. of Tex., No. D-1-GV-08-002588 (345th Dist. Ct., Travis County, Tex.). We will not address whether the information at issue in the lawsuit is excepted under the Act, but will instead allow the trial court to determine whether this information must be released to the public. Next, we address your claim section 552.103 of the Government Code excepts the submitted internal discrimination complaint from disclosure. Section 552.103 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). 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 (1) litigation was pending or reasonably anticipated on the date the governmental body 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). A governmental body must meet both prongs of this test for information to be excepted under section 552.103(a). You state and provide documentation showing that prior to DART's receipt of this request a lawsuit styled Rebecca Williams v. Dallas Area Rapid Transit, No. DC-09-13838-K (192nd Dist. Ct., Dallas County, Tex.) was filed and is currently pending. Further, you explain the internal discrimination complaint is directly related to the pending litigation because it pertains to one of the plaintiffs' claims. Based on your representation and our review of the information at issue, we agree you have shown litigation was pending when DART received the request for information. In addition, we find the information at issue is related to the pending litigation for purposes of section 552.103(a). Accordingly, DART may generally withhold the submitted internal discrimination complaint pursuant to section 552.103. We note 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. Thus, if all opposing parties to the pending litigation have seen or had access to information relating to 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 the applicability of section 552.103 ends once the related litigation concludes or is no longer reasonably anticipated. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). In summary, we decline to issue a decision regarding the information at issue in the pending litigation between DART and our office but will instead allow the trial court to determine whether this information must be released to the public. DART may withhold the submitted internal discrimination complaint 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, toll free, at (888) 672-6787. Sincerely, Ana Carolina Vieira Assistant Attorney General Open Records Division ACV/eeg Ref: ID# 372207 Enc. Submitted documents c: Requestor (w/o enclosures)
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |