July 5, 2011

Mr. Eric G. Burns

Assistant City Attorney

City of San Antonio

P.O. Box 839966

San Antonio, Texas 78283

OR2011-09503

Dear Mr. Burns:

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# 422725 (COSA File No. W000608-041411).

The City of San Antonio (the "city") received a request for all documents pertaining to a specified address. 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 information.

Initially, we note the submitted information includes a search warrant subject to disclosure under section 552.022 of the Government Code. Section 552.022(a)(17) provides for required public disclosure of "information that is also contained in a public court record," unless the information is expressly confidential under other law. See Gov't Code § 552.022(a)(17); Star-Telegram, Inc. v. Walker, 834 S.W.2d 54 (Tex. 1992). Although you seek to withhold the search warrant under section 552.103 of the Government Code, that 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 469, 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 expressly confidential for the purposes of section 552.022(a)(17). Accordingly, the information subject to section 552.022(a)(17) may not be withheld on the basis of section 552.103. As no further exceptions to disclosure have been raised for this information, it must be released. However, we will address your argument under section 552.103 for the remaining information that is not subject to section 552.022.

Section 552.103 of the Government Code provides, in relevant part, the following:

(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 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. Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. See Open Records Decision Nos. 555 (1990); 518 at 5 (1989) (litigation must be "realistically contemplated").

You state, and provide documentation showing, that on the date the city received the request, the requestor stated in an e-mail to the city that he was hired by the owner of the property at issue to file an appeal of the decision of the city's Dangerous Structure Determination Board ("DSDB"). You explain that, in order to appeal an order by the DSDB, an owner aggrieved by the decision must file a petition for writ of certiorari in state district court. Based on your representations, we find the city reasonably anticipated litigation on the date the request for information was received. You state the remaining information relates to the anticipated litigation as it pertains to the basis of the anticipated litigation. We find the remaining information relates to the anticipated litigation. Accordingly, we find the city may generally withhold the remaining information 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. Open Records Decision Nos. 349 (1982), 320 (1982). We note that it appears a portion of the submitted information has been seen by the other party in the anticipated litigation. Thus, to the extent the information at issue has not been obtained from or provided to the opposing party, the city may withhold this information under section 552.103. However, to the extent any of the information at issue has either been obtained from or provided to the opposing party in the anticipated litigation, it is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded or is no longer reasonably anticipated. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

In summary, the city must release the information we have marked under section 552.022(a)(17) of the Government Code. To the extent the remaining information has not been obtained from or provided to the opposing party in the anticipated litigation, the city may withhold the remaining information under section 552.103 of the Government Code. To the extent any portion of the remaining information has been obtained from or provided to the opposing party in the anticipated litigation, it 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,

Nneka Kanu

Assistant Attorney General

Open Records Division

NK/bs

Ref: ID# 422725

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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