November 28, 2011

Mr. Robert A. Schulman

Schulman, Lopez & Hoffer, L.L.P.

517 Soledad Street

San Antonio, Texas 78205-1508

OR2011-17377

Dear Mr. Schulman:

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# 439481.

The Cosmos Foundation, Inc. d/b/a Harmony Public Schools ("Harmony"), which you represent, received a request for a list of the names, salaries, positions, and citizenship status of all teachers currently employed by Harmony and the teachers currently in the country on H1-B visas. You submitted for our review information you state is a representative sample of information responsive to the request for information about teachers who are currently in the country on H1-B visas. You 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. ⁽¹⁾

Initially, we note you have not submitted information responsive to the request for a list of the names, salaries, positions, and citizenship status of all teachers currently employed by Harmony. To the extent information responsive to the requested list of the names, salaries and positions existed on the date Harmony received the request, we assume you have released it. If you have not released any such information, you must do so at this time. See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body concludes no exceptions apply to requested information, it must release information as soon as possible). With regard to the citizenship status of all teachers, you state Harmony only has access to such information when completing a Form I-9, Employee Eligibility Verification. ⁽²⁾ Section 1324a of title 8 of the United States Code provides the Form I-9 "and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter" and for enforcement of other federal statutes governing crime and criminal investigations. 8 U.S.C.A. § 1324a(b)(5); see 8 C.F.R. § 274a.2(b)(4). In Open Records Decision No. 684 (2009), this office issued a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including a Form I-9 and its attachments, under section 552.101 of the Government Code in conjunction with section 1324a of title 8 of the United States Code without the necessity of requesting an attorney general decision. We therefore conclude Harmony may withhold the responsive Form I-9s and attachments pursuant to Open Records Decision No. 684 without requesting a decision from this office.

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). Harmony has the burden of providing relevant facts and documents to show the section 552.103 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. 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). Harmony must meet both prongs of this test for information to be excepted under section 552.103.

To establish litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See id. This office has found a pending complaint filed 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 provide documentation showing former Harmony employees filed discrimination claims with the EEOC prior to the date of Harmony's receipt of this request for information. Thus, we agree Harmony reasonably anticipated litigation on the date it received the request for information. You state the submitted information is related to the anticipated litigation because the EEOC complaints allege Harmony discriminates against employees based on their race and national origin. Upon review, we agree the submitted information relates to the anticipated litigation. Accordingly, we conclude section 552.103 is applicable to the submitted information, and Harmony may withhold it on that basis. ⁽³⁾

We note, however, once information has been obtained by all parties to the anticipated litigation, no section 552.103(a) interest exists with respect to that information. See Open Records Decision No. 349 at 2 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and must be disclosed. We further note the applicability of section 552.103(a) ends when the litigation has concluded or is no longer reasonably anticipated. Attorney General Opinion MW-575 (1982) at 2; Open Records Decision Nos. 350 at 3 (1982), 349 at 2.

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,

Mack T. Harrison

Assistant Attorney General

Open Records Division

MTH/em

Ref: ID# 439481

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. 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.

2. Although a governmental body need not create a list in response to a request for information, it must make available nonconfidential documents from which the requested information can be derived. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 563 at 8 (1990), 555 at 1-2 (1990) (holding a governmental body is not required to create information that did not exist when the request for information was received).

3. As our ruling is dispositve, we need not address your remaining arguments against disclosure.

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