March 5, 2010

Ms. Melissa Villarreal Garcia

Personnel Attorney

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

OR2010-03255

Dear Ms. Villarreal Garcia:

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#372490.

The Texas Commission on Environmental Quality (the "commission") received a request for the last two evaluations and disciplinary write-ups of a former employee. You claim that the submitted 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 sample of information. ⁽¹⁾

Initially, we note that a portion of the submitted information is subject to section 552.022 of the Government Code. Section 552.022(a) provides, in relevant part:

(a) . . . 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, except as provided by Section 552.108.

Gov't Code § 552.022(a)(1). The submitted information contains a completed employee evaluation, which is expressly public under section 552.022(a)(1). The commission must release the evaluation pursuant to section 552.022 unless it is excepted from disclosure under section 552.108 of the Government Code, or is expressly made confidential under other law. See id. You claim that the evaluation is subject to section 552.103 of the Government Code. Section 552.103 of the Government Code is a discretionary exception to disclosure that protects the governmental body's interests and is therefore not "other law" that makes information expressly confidential for purposes of section 552.022(a). See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive section 552.103); see also Open Records Decision No.665 at 2 n.5 (2000) (discretionary exceptions generally). Consequently, the commission may not withhold the employee evaluation pursuant to section 552.103 of the Government Code. We note, however, that this evaluation contains information that may be excepted from disclosure under section 552.117 of the Government Code. ⁽²⁾ This section is considered "other law" for the purposes of section 552.022; therefore we will consider the applicability of this section to the employee evaluation, as well as your claim under section 552.103 for the remaining submitted information.

Next, we address your claim under section 552.103 for the information not subject to section 552.022(a)(1). Section 552.103 of the Government Code 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). The governmental body 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 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). The 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. This office has stated that a pending complaint with the Equal Employment Opportunity Commission (the "EEOC") indicates litigation is reasonably anticipated. Open Records Decision Nos. 386 at 2 (1983), 336 at 1 (1982). In this instance, you inform us that prior to the commission's receipt of this request the employee named in the request filed a complaint against the commission with the EEOC and the Texas Workforce Commission. Further, you argue that the documents requested are directly related to the anticipated litigation because the information relates to personnel matters involving the employee, including reasons for her termination, that may be used by the commission in its defense of the anticipated litigation. Therefore, we find that the information at issue is related to litigation that the commission anticipated on the date it received the instant request.

We note, however, that the remaining documents you seek to withhold under section 552.103 are a notice of termination letter sent to the named employee and a notice of intent to terminate employment memorandum signed by the named employee. These two remaining documents have been seen by the potential opposing party to the anticipated litigation. If a potential opposing party has seen or had access to information that is related to anticipated 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). Therefore, the commission may not withhold the letter or the memorandum under section 552.103 of the Government Code.

We note that the information being released may be subject to section 552.117 of the Government Code. Section 552.117(a)(1) excepts from disclosure the current and former 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. See Gov't Code §§ 552.117(a)(1), .024. Whether information is protected by section 552.117(a)(1) must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). The submitted information does not reflect whether the employee elected to keep her information confidential pursuant to section 552.024 of the Government Code prior to the commission receiving the request at issue. If the employee made a timely election under section 552.024, then the commission must withhold the information we have marked under section 552.117(a)(1) of the Government Code. If the commission employee did not make a timely election under section 552.024, the information that we have marked under section 552.117(a)(1) may not be withheld under that exception and must be released to the requestor along with the remaining information. ⁽³⁾

In summary, to the extent the commission employee made a timely election under section 552.024, the commission must withhold the information we have marked pursuant to section 552.117(a)(1) of the Government Code. The remaining information must be released.

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,

Kate Hartfield

Assistant Attorney General

Open Records Division

KH/dls

Ref: ID# 372490

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

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 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 that those records contain substantially different types of information than that submitted to this office.

2. The Office of the Attorney General will raise a mandatory exception like section 552.117 on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

3. We note that even if the employee did not make a timely election under section 552.024, 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. Gov't Code § 552.147.

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