 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
January 5, 2012 Mr. Jason D. King Attorney for the City of Bee Cave Akers & Boulware-Wells, LLP 6618 Sitio Del Rio Boulevard, Building E, Suite 102 Austin, Texas 78730 OR2012-00210 Dear Mr. King: 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# 441559. The City of Bee Cave (the "city"), which you represent, received a request for the files for the sign permits for eleven specified locations. You state the city has no information responsive for several of the specified locations. (1) 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 the submitted information includes a city ordinance. As laws and ordinances are binding on members of the public, they are matters of public record and may not be withheld from disclosure under the Act. See Open Records Decision Nos. 551 at 2-3 (1990) (laws or ordinances are open records), 221 at 1 (1979) (official records of governmental body's public proceedings are among most open of records). Therefore, the submitted city ordinance, which we have marked, must be released. Next, we note some of the submitted information is subject to section 552.022 of the Government Code. Section 552.022(a) provides, in relevant part: (a) [T]he following categories of information are public information and not excepted from required disclosure under this chapter unless made confidential under this chapter or other law: . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] See Gov't Code § 552.022(a)(3). The submitted information contains information in an account that is subject to subsection 552.022(a)(3). The city must release information subject to subsection 552.022(a)(3) unless it is made confidential under the Act or other law. Id. You seek to withhold the information at issue under section 552.103 of the Government Code. However, section 552.103 is discretionary and does not make information confidential under the Act. Act of May 30, 2011, 82nd Leg., R.S., S.B. 602, §§ 3-21, 23-26, 28-37 (providing for "confidentiality" of information under specified exceptions); 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 Gov't Code § 552.103); see also Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions), 542 at 4 (1990) (statutory predecessor to section 552.103 may be waived). Therefore, the information subject to subsection 552.022(a)(3), which we have marked, may not be withheld under section 552.103 of the Government Code. Because section 552.136 of the Government Code makes information confidential under the Act, we will consider the applicability of this section to the information subject to section 552.022(a)(3). (2) We will also consider your arguments under section 552.103 of the Government Code for the information not subject to section 552.022.. Section 552.136 of the Government Code provides, "[n]otwithstanding any other provision of [the Act], a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136(b). Accordingly, in releasing the information subject to section 552.022(a)(3), the city must withhold the routing and bank account numbers we have marked under section 552.136 of the Government Code. Section 552.103 of the Government Code provides, in relevant part: (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 claiming section 552.103 has the burden of providing relevant facts and documents sufficient to establish the applicability of section 552.103 to the information it seeks to withhold. To meet this burden, the governmental body must demonstrate: (1) litigation was pending or reasonably anticipated on the date of its receipt of the request for information, and (2) 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.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'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). You state, and provide documentation showing, prior to the city's receipt of the instant request, a lawsuit styled AusPro Enterprises, L.P., v. City of Bee Cave, Texas, Cause No. 2011-002204, was filed and is currently pending against the city in the 201st District Court of Travis County, Texas. Therefore, we agree litigation was pending on the date the city received the present request for information. You also state the remaining information pertains to the substance of the lawsuit claims. Based on your representations and our review, we find the remaining information is related to the pending litigation. Therefore, we conclude the city may withhold the remaining information under section 552.103 of the Government Code. Generally, however, once information has been obtained by all parties to the litigation though 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 all parties to 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 been concluded. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982). In summary, the city must release the submitted city ordinance, which we have marked, and the information subject to subsection 552.022(a)(3), which we have marked. In releasing the information subject to section 552.022(a)(3), the city must withhold the routing and bank account numbers we have marked under section 552.136 of the Government Code. The city may withhold the remaining information under section 552.103 of the Government Code 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, Claire V. Morris Sloan Assistant Attorney General Open Records Division CVMS/agn Ref: ID# 441559 Enc. Submitted documents c: Requestor (w/o enclosures) Footnotes1. The Act does not require a governmental body that receives a request for information to create
information that did not exist when the request was received. 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), 452 at 3 (1986), 362 at 2 (1983).
2. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480
(1987), 470 (1987). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |