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<:H<*->

<+C><:f240,1Times New Roman,0,0,0>M<:f240,1Times New Roman,0,0,0> - Page <:P11,1,>

>

<:H<*->

<+C>Ms. Anne M. Constantine - Page <:P11,1,>

>

<+C>

<+C>

<+C>

<+C>February 8, 2011

<+C>

<+C>

<+C>

<+C>Ms. Anne M. Constantine

<+C>Legal Counsel

<+C>Dallas/Fort Worth International Airport

<+C>P.O. Box 619428

<+C>DFW Airport, Texas 75261-9428

<+C>

@Style #0@OR2011-01926

@Body Text@

Dear Ms. Constantine:

You ask whether certain information is subject to required public disclosure under the

Public Information Act (the </S>Act</T>), chapter 552 of the Government Code. Your request was

assigned ID# 408416.

The Dallas Fort Worth International Airport Board (the </S>board</T>) received a request for

information from a named individual</R>s personnel file, not including information previously

released to the requestor.<:F

@Footnote@<+C> <+&><-&><:f200,1Times New Roman,0,0,0>We note in a letter dated December 28, 2010, the requestor</R>s attorney informed this office the

requestor does not seek any information that has previously been released to the requestor.<:f240,1Times New Roman,0,0,0>

>

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. We have also received and

considered comments submitted by the requestor</R>s attorney. <+">See<-"> Gov</R>t Code </g> 552.304

(interested party may submit comments stating why information should or should not be

released).

<+C>

<+C>Initially, we address the assertion of the requestor</R>s attorney the board waived its claim under

section 552.103 of the Government Code. The requestor</R>s attorney states the information

sought by the requestor is related to a previous request for information, in response to which

this office issued Open Records Letter No. 2009-09775 (2009). In that ruling, the board

claimed the information at issue was excepted under section 552.101 of the Government

Code. The board claims information responsive to the instant request is excepted fromdisclosure under section 552.103. The requestor asserts the board should have consistently

objected to the requests under section 552.103 and the board should not be allowed to assert

section 552.103 now because it </S>did not plead that exception in response to the <[>previous]

request.</T> We note section 552.103 is a discretionary exception to disclosure that protects the

governmental body</R>s interests and may be waived by the governmental body. <+">See Dallas

Area Rapid Transit v. Dallas Morning News<-">, 4 S.W.3d 469, 475-76 (Tex. App.</W>

Dallas 1999, no pet.) (governmental body may waive section 552.103); <+">see also<-"> Open

Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 (1999)

(governmental body may waive section 552.103). Thus, the board has the discretion to

release information that could be potentially withheld under section 552.103, even if it seeks

to withhold other responsive information under the same exception. We note

section 552.007 of the Government Code prohibits an agency from selectively disclosing

information that is not confidential by law but that an agency may withhold under an

exception to disclosure. Gov</R>t Code </g> 552.007. Therefore, if an agency releases

nonconfidential information to a member of the public, then the agency must release the

exact same information to all members of the public who request it. However,

section 552.007 does not prohibit an agency from withholding similar types of information.

Because the requestor specifically does not seek any information previously released, we will

address the board</R>s arguments.

<+C>

<+C>Section 552.103 of the Government Code provides in part:

<+C>

@Style #1@<+C>(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</R>s office or employment, is or may be a party.

@Style #2@<+C>

@Style #1@<+C>. . .

@Style #2@<+C>

@Style #1@<+C>(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.

@Style #2@<+C>

@Style #2@<+C><+">Id.<-"> </g> 552.103(a), (c). A governmental body has the burden of providing relevant facts and

documents sufficient to establish the applicability of section 552.103 to the information that

it seeks to withhold. To meet this burden, the governmental body must demonstrate: (1) that

litigation was pending or reasonably anticipated on the date of its receipt of the request for

information and (2) that the information at issue is related to that litigation. <+">See Univ. of Tex.

Law Sch. v. Tex. Legal Found.<-">, 958 S.W.2d 479 (Tex. App.</W>Austin 1997, no pet.); <+">Heard

v. Houston Post Co.<-">, 684 S.W.2d 210 (Tex. App.</W>Houston <[>1st Dist.] 1984, writref</R>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).

@Style #2@<+C>

@Style #2@<+C>You inform us, and provide documentation showing, the board was named as a defendant

in a lawsuit styled<+"> Di Ann Sanchez v. Dallas/Fort Worth International Airport Board<-">, Civil

Action No. 4:09-CV-373-A, which was filed in the United States District Court for the

Northern District of Texas, Fort Worth Division. You further state, and the documentation

reflects, the lawsuit was filed prior to the board</R>s receipt of the present request for

information. Upon review, we conclude litigation was pending when the board received the

request. Our review of the submitted information also shows it is related to the pending

litigation for purposes of section 552.103. Accordingly, we find the board may withhold the

submitted information under section 552.103.

@Style #2@<+C>

@Style #2@<+C>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). Thus, information that has either

been obtained from or provided to the opposing parties in the pending litigation 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).

@Style #2@<+C>

@Style #2@<+C>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.

@Style #2@<+C>

@Style #2@<+C>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</R>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.

@Style #2@<+C>

@Style #2@<+C>Sincerely,

@Style #2@<+C>

@Style #2@<+C>

@Style #2@<+C>

@Style #2@<+C>Ana Carolina Vieira

@Style #2@<+C>Assistant Attorney General

@Style #2@<+C>Open Records Division

@Style #2@<+C>

@Style #2@<+C>ACV/eeg

@Style #2@<+C>Ref: ID# 408416

@Style #2@<+C>

@Style #2@<+C>Enc. Submitted documents

@Style #2@<+C>

@Style #2@<+C>c:Requestor

<+C> (w/o enclosures)

>

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