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August 31, 1999

Ms. Raenell Silcox
Attorney
Resource Protection Division
Texas Parks & Wildlife
4200 Smith School Road
Austin, Texas 78744-3291

OR99-2357

Dear Ms Silcox:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 126957.

The Texas Department of Parks & Wildlife (the "department") received a request for a copy of the department's findings made during a visit to the property of the requestor's client. You claim that the requested information is excepted from disclosure under sections 552.103 and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.

To show that section 552.103(a) is applicable, the department must demonstrate that (1) litigation is pending or reasonably anticipated and (2) the information at issue is related to that litigation. 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). Contested cases conducted under the Administrative Procedure Act, chapter 2001 of the Government Code, are considered litigation under section 552.103. Open Records Decision No. 588 at 7 (1991). Section 552.103 requires concrete evidence that litigation may ensue. To demonstrate that litigation is reasonably anticipated, the department must furnish evidence that litigation is realistically contemplated and is more than mere conjecture. Open Records Decision No. 518 at 5 (1989). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986).

The department, the Texas Natural Resource Conservation Commission, and the Texas General Land Office, are trustees for the state's natural resources pursuant to federal statutes. As a trustee, the department may bring a court action to recover natural resource damages sustained as the result of an unauthorized discharge of hazardous materials. See Nat. Res. Code 40.107. A natural resource damage claim may only be resolved by settlement or litigation. After reviewing your arguments and the submitted documents, we conclude that litigation is reasonably anticipated. We also find that the submitted documents are related to the reasonably anticipated litigation for the purposes of section 552.103(a). The documents may, therefore, be withheld pursuant to section 552.103.

Generally, 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. We note that 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).

Because we are able to make a determination under section 552.103, we need not address you additional arguments against 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 on as a previous determination regarding any other records. If you have any questions regarding this ruling, please contact our office.

Sincerely,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/ch

Ref: ID# 126957

Encl. Submitted documents

cc: Mr. Sam S. Nieto
Attorney at Law
656 North Highway 123, Suite 100
Seguin, Texas 78155
(w/o enclosures)


 

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