January 25, 2012

Ms. Tiffany N. Evans

Assistant City Attorney

City of Houston

P.O. Box 368

Houston, Texas 77001-0368

OR2012-01208

Dear Ms. Evans:

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# 443251 (GC No. 19081).

The City of Houston (the "city") received two requests from the same requestor for information pertaining to specified wastewater laboratory samples taken during specified time periods. You state the city will provide some of the requested information to the requestor. You claim the remaining requested information is excepted from disclosure under section 552.103 of the Government Code. ⁽¹⁾ We have considered the exception you claim and reviewed the submitted representative sample of information. ⁽²⁾

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). A 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 (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). A governmental body must meet both prongs of this test for information to be excepted under section 552.103(a).

You state, and provide documentation showing, the city received the requests for information after a lawsuit styled Downstream Environmental, L.L.C. v. City of Houston, Cause No. 2011-29293, was filed by the requestor's company in the 295th District Court of Harris County, Texas. Based on your representation and our review, we conclude litigation involving the city was pending when the city received the requests. You also state the requested laboratory sample information relates to the pending litigation because it pertains to the issues that help form the basis of the lawsuit. Based on your representations and our review, we find the requested laboratory sample information is related to the pending litigation for purposes of section 552.103(a). Therefore, we conclude the city may withhold the requested laboratory sample information under section 552.103(a) 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). Thus, information that has either been obtained from or provided to the opposing party in the 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).

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,

Kenneth Leland Conyer

Assistant Attorney General

Open Records Division

KCD/dls

Ref: ID# 443251

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Although you also raise section 552.111 of the Government Code, you have not provided arguments explaining how this exception applies to the reqeusted information. Therefore, we assume you no longer assert section 552.111. See Gov't Code §§ 552.301(b), (e), .302.

2. 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.

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