April 8, 2010

Mr. Kevin L. Williams

Associate General Counsel

Texas Tech University System

Office of Vice Chancellor and General Counsel

3601 4^th Street STOP 6246, Suite 2B141

Lubbock, Texas 79430-6246

OR2010-04970

Dear Mr. Williams:

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# 375284.

The Texas Tech University Health Science Center (the "center") received a request for all documents and correspondence sent, received, or compiled by the center related to gender discrimination during a specified time period; (2) all documents and correspondence sent, received, or compiled by the center concerning a named individual; and (3) all documents and correspondence relating to a specified audit. You state some of the responsive information has been released. You claim the submitted information is excepted from disclosure under sections 552.103 and 552.116 of the Government Code. ⁽¹⁾ We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽²⁾

Initially, we note that the submitted information includes an employee performance evaluation subject to section 552.022(a)(1) 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 expressly confidential under other law or excepted from disclosure under section 552.108 of the Government Code. Gov't Code § 552.022(a)(1). Although you seek to withhold the information subject to section 552.022(a)(1) under section 552.103 of the Government Code, this section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 439, 475-76 (Tex. App.--Dallas, 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). As such, section 552.103 is not other law that makes information confidential for the purposes of section 552.022. Therefore, the center may not withhold the performance evaluation, which we have marked, under section 552.103 of the Government Code. However, we will consider whether any of the information in the performance evaluation is excepted by section 552.117 of the Government Code. We will also consider your arguments under 552.103, as well as section 552.116, for the remaining information that is not subject to 552.022.

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). The center 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 center must meet both prongs of this test for information to be excepted under 552.103(a).

You contend that Exhibit E is excepted from disclosure pursuant to section 552.103 of the Government Code. You state, and have provided documentation showing, that the center was a party to pending litigation on the date of the center's receipt of the present request for information. You inform us that the information at issue is related to the pending litigation. Based on your representations and our review of the information at issue, we find that Exhibit E is related to pending litigation to which the center was a party on the date of its receipt of this request. Therefore, we conclude section 552.103 is generally applicable to Exhibit E.

We note, however, that the opposing party in litigation has seen or had access to some of the information at issue. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties seeking information relating to the litigation to obtain such information through discovery procedures. See ORD 551 at 4-5. Thus, when an opposing party has seen or had access to information relating to pending litigation, there is no interest in withholding that information from public disclosure under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). Consequently, the information the opposing party has seen or had access to may not be withheld under section 552.103. Accordingly, with the exception of the information the opposing party has seen or had access to, which we have marked, the center may withhold Exhibit E under section 552.103 of the Government Code. We note the applicability of section 552.103 ends once the litigation has concluded. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

Section 552.116 of the Government Code provides:

(a) An audit working paper of an audit of the state auditor or the auditor of a state agency, an institution of higher education as defined by Section 61.003, Education Code, a county, a municipality, a school district, or a joint board operating under Section 22.074, Transportation Code, including any audit relating to the criminal history background check of a public school employee, is excepted from [required public disclosure under the Act]. If information in an audit working paper is also maintained in another record, that other record is not excepted from [required public disclosure] by this section.

(b) In this section:

(1) 'Audit' means an audit authorized or required by a statute of this state or the United States, the charter or an ordinance of a municipality, an order of the commissioners court of a county, a resolution or other action of a board of trustees of a school district, including an audit by the district relating to the criminal history background check of a public school employee, or a resolution or other action of a joint board described by Subsection (a) and includes an investigation.

(2) 'Audit working paper' includes all information, documentary or otherwise, prepared or maintained in conducting an audit or preparing an audit report, including:

(A) intra-agency and interagency communications; and

(B) drafts of the audit report or portions of those drafts.

Gov't Code § 552.116. You inform this office, and provide an affidavit showing, that Exhibit G consists of audit working papers of an internal audit conducted by the Texas Tech University System's Office of Audit Services. You further inform us that the audit was conducted for the purpose of determining compliance with the Texas Tech University System's rules and the center's operating polices and to evaluate economy and efficiency as authorized by sections 2102.001-.014 of the Government Code (providing for the Texas Internal Auditing Act). Based on your representations and our review of the documents at issue, we agree that Exhibit G consists of audit working papers as defined in section 552.116(2). Accordingly, the center may withhold Exhibit G pursuant to section 552.116 of the Government Code.

We note that some of the remaining information, including the performance evaluation subject to section 552.022, may be subject to section 552.117 of the Government Code. 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. ⁽³⁾ Whether a particular piece of 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). We have marked personal information in the remaining information that is subject to section 552.117(a)(1). Accordingly, to the extent the employees at issue timely elected confidentiality for their personal information under section 552.024, the center must withhold the information we have marked under section 552.117(a)(1) of the Government Code. ⁽⁴⁾

Section 552.137 excepts from disclosure "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body," unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c). Gov't Code § 552.137(a)-(c). The e-mail address we have marked in the remaining information does not appear to be a type specifically excluded by section 552.137(c). Accordingly, the center must withhold the marked e-mail address under section 552.137, unless the owner of the address has affirmatively consented to its release. ⁽⁵⁾ See id. § 552.137(b).

In summary, with the exception of the performance evaluation subject to section 552.022(a)(1) of the Government Code and the information that has been seen by the opposing party in litigation, the center may withhold Exhibit E under section 552.103 of the Government Code. The center may withhold Exhibit G under section 552.116 of the Government Code. The center must withhold the information we have marked under section 552.117(a)(1) if the employees at issue made a timely election for confidentiality under section 552.024 of the Government Code. The center must withhold the e-mail address we have marked under section 552.137. 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,

Pamela Wissemann

Assistant Attorney General

Open Records Division

PFW/cc

Ref: ID# 375284

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Although you also raise section 552.101 of the Government Code, you have provided no arguments explaining how this exception is applicable to the submitted information. Therefore, we assume you no longer assert this exception. See Gov't Code §§ 552.301(e)(1)(A), .302.

2. 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.

3. The Office of the Attorney General will raise mandatory exceptions like sections 552.117 and 552.137 on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

4. To the extent the employee at issue did not elect confidentiality for his social security number, we note that 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. See Gov't Code § 552.147.

5. We note this office recently issued Open Records Decision No. 684 (2009), a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including an e-mail address of a member of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

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