December 9, 2010

Mr. Michael B. Gary

Assistant General Counsel

Harris County Appraisal District

P.O. Box 920975

Houston, Texas 77292-0975

OR2010-18511

Dear Mr. Gary:

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# 403199 (HCAD internal reference #10-2717).

The Harris County Appraisal District (the "district") received a request for any, every and all e-mails, memoranda, notes, letters, correspondence or material of any kind for a specified period of time written by a named individual to any person, entity or organization in which the Houston Masonic Library and Museum Foundation (or any derivative of that name) or district account # 1165390010017 is mentioned. You claim 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 information.

Initially we note some of the submitted information is not responsive to the instant request because it is not from the named individual, it does not mention the Houston Masonic Library and Museum Foundation (or any derivative of that name) or district account # 1165390010017, or it was created after the date of the request. The district need not release nonresponsive information in response to this request, and this ruling will not address that information.

Section 552.103 of the Government Code provides in relevant 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 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 Open Records Decision No. 551 at 4-5 (1990). A 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 was pending or reasonably anticipated on the date that the governmental body received the request for information, and (2) the information at issue is related to that litigation. Thomas v. Cornyn, 71 S.W.3d 473, 487 (Tex. App.--Austin 2002, no pet.); 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.); ORD 551 at 4. A governmental body must meet both prongs of this test for information to be excepted from disclosure under section 552.103(a).

You state, and have provided documentation showing, prior to the district's receipt of the present request, a lawsuit styled Houston Masonic Library & Museum Foundation West Houston Masonic Library & Museum Foundation v. Harris County Appraisal District, Cause No. 2009-09420, was filed and is currently pending in the 11th Judicial District Court in Harris County, Texas. Therefore, we agree that litigation was pending on the date the district received the present request for information. Further, you state the information at issue is related to the lawsuit pending before the court because it concerns exemptions, and the request seeks all e-mails from the supervisor in charge of exemptions at the district regarding the requestor's organization and its account. Thus, based on the district's representation and our review of the information at issue, we agree the information at issue relates to the pending litigation. Accordingly, we conclude the district may withhold the information at issue under section 552.103 of the Government Code.

We note, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. See Open Records Decision Nos. 349 (1982), 320 (1982). Some of the information at issue was obtained from or provided to the opposing party. Thus, such information is not excepted from disclosure under section 552.103(a) and must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has concluded. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982).

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,

Sean Nottingham

Assistant Attorney General

Open Records Division

SN/vb

Ref: ID# 403199

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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