 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 28, 2011 Ms. Neera Chatterjee Office of General Counsel University of Texas System 201 West Seventh Street Austin, Texas 78701-2902 OR2011-02884 Dear Ms. Chatterjee: 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# 411505 (OGC# 134676). The University of Texas at Austin (the "university") received a request for "any material that has been added to [the requestor's] personnel file since August 2007[.]" You state the university is redacting some information pursuant to the Family Educational Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code. (1) You also state the university will redact information under section 552.137 of the Government Code pursuant to Open Records Decision No. 684 (2009). (2) You indicate the university will release some of the requested information, but claim the submitted information is excepted from disclosure under sections 552.101, 552.103, and 552.107 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. (3) 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 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 that (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). The governmental body must meet both prongs of this test for information to be excepted from disclosure under section 552.103(a). This office has stated 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). You have submitted information to this office showing that, prior to the university's receipt of the request for information, the requestor filed a complaint against the university with the EEOC. Based on your representations and our review of the submitted documents, we find you have demonstrated litigation was reasonably anticipated when the university received the request for information. You also argue the requestor could use the submitted information "not only to bolster his claims of discrimination but could also try to expand the scope of his allegations within the EEOC complaint." Thus, you assert "the requested information necessarily relates to the [r]equestor's claims and thus, the request pertains to the [u]niversity's defense against such claims." Upon review, we find the university has established the submitted information relates to the anticipated litigation for purposes of section 552.103(a). Thus, we agree section 552.103 is applicable to the submitted information. We note, however, the university seeks to withhold information that the requestor, as opposing party to the anticipated litigation, has already seen or had access to. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties to obtain information that relates to the litigation through discovery procedures. See Open Records Decision No. 551 at 4-5 (1990). Thus, if the opposing party to pending litigation has already seen or had access to information that relates to the litigation, through discovery or otherwise, there is no interest in now withholding such information under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). Therefore, the submitted information that the requestor has already seen or had access to is not excepted from disclosure under section 552.103. However, the university may withhold the remaining information under section 552.103. (4) 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, James L. Coggeshall Assistant Attorney General Open Records Division JLC/tf Ref: ID# 411505 Enc. Submitted documents c: Requestor (w/o enclosures)
1. The United States Department of Education Family Policy Compliance Office (the "DOE") has
informed this office FERPA does not permit state and local educational authorities to disclose to this office,
without parental consent, unredacted, personally identifiable information contained in education records for the
purpose of our review in the open records ruling process under the Act. The DOE has determined FERPA
determinations must be made by the educational authority in possession of the education records. We have
posted a copy of the letter from the DOE to this office on the Attorney General's website:
http://www.oag.state.tx.us/open/20060725usdoe.pdf.
2. Open Records Decision No. 684 serves as 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. See ORD 684.
3. We assume 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 those records contain substantially different types of information than that submitted to this office.
4. As our ruling is dispositive, we do not address your other arguments to withhold this information.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |