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May 14, 1999

Ms. Kathleen Wells
Attorney at Law
2806 Bank One Tower
500 Throckmorton Street
Fort Worth, Texas 76102

OR99-1331

Dear Ms. Wells:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 125275.

The Gainesville Independent School District (the "district") received requests for information relating to applicants for the head coaching position at Gainesville High School, the job description for that position, and information as to the last day of work of a named individual as athletic director for the high school and as to when that individual begins as athletic director for the district's junior high and elementary schools. We understand you seek to withhold the requested information relating to applicants for the head coaching position at Gainesville High School under sections 552.101, 552.102, 552.103, and 552.107 of the Government Code.

Section 552.103(a) excepts from required public disclosure information

(1) relating to litigation of a civil or criminal nature or settlement negotiations, 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; and

(2) that the attorney general or the attorney of the political subdivision has determined should be withheld from public inspection.

To secure the protection of section 552.103(a), a governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation to which the governmental body is a party. Open Records Decision No. 588 (1991). The mere chance of litigation will not trigger section 552.103(a). Open Records Decision No. 452 (1986) and authorities cited there. 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.

You supply copies of documents showing that a grievance has been filed with the district and that litigation has been threatened by both the filer of the grievance and the district in connection with the district's attempts to hire a new high school football coach. We believe that you have demonstrated that the district reasonably anticipates litigation to which the information at issue relates. Accordingly, you may withhold under section 552.103(a) information responsive to the requests for information relating to applicants for the head coaching position at Gainesville High School.(1)

We assume, however, that none of the information in the records at issue has previously been made available to the opposing party in the anticipated litigation. Absent special circumstances, once information has been obtained by all parties to the litigation, either through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349(1982), 320 (1982). To the extent the opposing party has seen or had access to these records, there would be no justification for now withholding such information from the requestor pursuant to section 552.103(a). Similarly, section 552.103(a) does not authorize withholding materials which have already been made available to the public. Open Records Decision No. 436 (1986). The applicability of section 552.103(a) ends once the litigation has concluded. Attorney General Opinion MW-575 (1982), Open Records Decision No. 350 (1982).

Since we have disposed of this request under section 552.103(a), we need not address your other claimed exceptions to disclosure. We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

William Walker
Assistant Attorney General
Open Records Division

WMW/eaf

Ref.: ID# 125275

encl. Submitted documents

cc: Ms. Paige Scherr
Hayes, Coffey & Berry
P.O. Box 50149
Denton, Texas 76306


 

Footnotes

1. Again, we do not understand you to seek to withhold the requested job description for the head coaching position at Gainesville High School or information as to the last day of work of the named individual as athletic director for the high school and when that individual begins as athletic director for the district's junior high and elementary schools. This information must be released.
 

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