|Office of the Attorney General - State of Texas
September 23, 1999
Dear Ms. Wright:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 129319.
The Texas Department of Transportation (the "department") received a request for a copy of a department drawing related to a section of Highway 77 which is located in Kingsville. You claim that the requested 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.
Section 552.103(a) 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 department 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 department must meet both prongs of this test for information to be excepted under 552.103(a).
We now examine whether the department has shown that litigation is pending or reasonably anticipated and that the requested information is related to the litigation. You have provided a notice of claim from an attorney regarding an accident which took place on Highway 77. You represent that the notice of claim is in compliance with the notice requirements of the Texas Tort Claims Act, Civ. Prac. & Rem. Code ch. 101. See Open Records Decision No. 638 (1996) (fact that governmental body received claim letter that it represents to this office to be in compliance with notice requirements of Texas Tort Claims Act, Civ. Prac. & Rem. Code ch. 101, or applicable municipal ordinance shows that litigation is reasonably anticipated). You further assert that the information requested directly concerns facts related to the notice of claim. We have reviewed the records, and our review shows that they are related to the anticipated litigation. Thus, we conclude that you have made the requisite showing that the requested information relates to anticipated litigation for purposes of 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.
Carla Gay Dickson
Ref: ID# 129319
Encl. Submitted documents
cc: Mr. Andrew M. Gilchrist
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US