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June 21, 1999

Ms. Lan P. Nguyen
Assistant City Attorney
City of Houston Legal Department
P.O. Box 1562
Houston, Texas 77251-1562

OR99-1691

Dear Ms. Nguyen:

You have asked whether certain information is subject to required public disclosure under the Texas Public Information Act (the "act"), chapter 552 of the Government Code. Your request was assigned ID# 125229.

The City of Houston (the "city") received a request for "a copy of the estimated property damages and/or color pictures of your insured's vehicle," concerning an automobile collision on January 10, 1999, which involved the requestor's client. In response to the request, you submit to this office for review the information at issue.(1) You claim that the requested information is excepted from required public disclosure by section 552.103 of the Government Code. We have considered the exception and arguments you have raised and reviewed the submitted information.

Section 552.103(a), the "litigation exception" excepts from 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.

The city has the burden of providing relevant facts and documents to show that 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, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas 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 city must meet both prongs of this test for information to be excepted under section 552.103(a). Section 552.103 requires concrete evidence that litigation may ensue. To demonstrate that litigation is reasonably anticipated, the city must furnish evidence that litigation is realistically contemplated and is more than mere conjecture. Open Records Decision No. 518 at 5 (1989).

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. Open Records Decision No. 555 (1990); see Open Records Decision No. 518 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). Nor does the mere fact that an individual hires an attorney and alleges damages serve to establish that litigation is reasonably anticipated. Open Records Decision No. 361 (1983). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986).

In this instance, you have supplied to this office a claim letter from an attorney who represents an opposing party. You state that the requestor's letter is a "notice of claim" letter for damages on behalf of her client.(2) The notice of claim involves a claim against the city for "the collection of damages for injuries" sustained by the requestor's client. The requestor states that "since substantial damages will be asked for in this claim, you should immediately turn this letter over to your insurance carrier." You have submitted an affidavit in support of the section 552.103 claim, and state that "[t]he City realistically anticipates the filing of a lawsuit in this matter as a result of the denial of said claim." Based on your arguments and the submitted records, we conclude that litigation is reasonably anticipated. Open Records Decision No. 638 (1996). We also conclude that the documents submitted by the city are related to the litigation for the purposes of section 552.103(a). Therefore, the information at issue, submitted as Exhibit 2, may be withheld pursuant to section 552.103(a).

Generally, 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 anticipated litigation 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. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

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,

Sam Haddad
Assistant Attorney General
Open Records Division

SH/nc

Ref.: ID# 125229

Encl: Submitted documents

cc: Ms. Helen Hsu
Ferrer, Poirot & Wansbrough
3223 Smith St., Suite 307
Houston, Texas 77006
(w/o enclosures)


 

Footnotes

1. You have submitted to this office certain information, such as the officer's accident ST-3 report, that apparently was sent for informational purposes only. In this ruling, we do not address that information. However, we note that since the requestor has provided the city with the date of the accident and the names of persons involved in the accident, if the information were responsive, you would be required to release the information under section 47(b)(1)(D) of V.T.C.S. article 6701d.

2. Under Open Records Decision No. 638 (1996), a governmental body may establish that litigation is reasonably anticipated by showing that (1) it has received a claim letter from an allegedly injured party or his attorney, and (2) the governmental body states that the letter complies with the notice of claim provisions of the Texas Tort Claims Act ("TTCA") or applicable municipal statute or ordinance.

 

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