|Office of the Attorney General - State of Texas
November 30, 1999
Mr. Paul Sarahan
Dear Mr. Sarahan:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 129730.
The Texas Natural Resource Conservation Commission ("TNRCC") received a request for documents regarding Intertek Testing Environmental Laboratories, Inc. You state that you have made available to the requestor those documents that you believe are public. You claim that the remaining portions of the requested information are excepted from disclosure under sections 552.103, 552.107, 552.108, 552.111, and 552.116 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample information.(1)
When asserting section 552.103(a), a governmental body must establish that the requested information relates to pending or reasonably anticipated litigation.(2)
Thus, under section 552.103(a) a governmental body's burden is two-pronged. The governmental body must establish that (1) litigation to which the governmental body is a party is either pending or reasonably anticipated, and that (2) the requested information relates to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.-Austin 1997, no pet.); Open Records Decision No. 551 at 4 (1990). You state that the TNRCC, in conjunction with state and federal authorities, has conducted and participated in a criminal investigation of the activities of Intertek Testing Services. You also state that the "investigation was initiated because the agencies involved in the investigation believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation." In this instance, you have made the requisite showing that the requested information relates to reasonably anticipated litigation for purposes of section 552.103. The requested records may therefore be withheld.(3)
In reaching this conclusion, we assume that the opposing party to the litigation has not previously had access to the records at issue; absent special circumstances, once information has been obtained by all parties to the litigation, e.g., through discovery or otherwise, no section 552.103 interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). We also note that the applicability of section 552.103 ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). As section 552.103 is dispositive, we will not address your assertions under sections 552.107, 552.108, 552.111, and 552.116.
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.
Encl.: Submitted documents
cc: Mr. John Gordon
1. We assume that 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 that those records contain substantially different types of information than that submitted to this office.
2. Section 552.103(a) reads as follows:
(a) Information is excepted from the requirements of Section 552.021 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.
(b) For purposes of this section, the state or a political subdivision is considered to be a party to litigation of a criminal nature until the applicable statute of limitations has expired or until the defendant has exhausted all appellate and postconviction remedies in state and federal court.
(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.
3. Some of the information responsive to the request may now be subject to disclosure notwithstanding your section 552.103 assertion. The Seventy-sixth Legislature amended section 552.022 which reads in pertinent part:
(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:
(1) completed report, audit, evaluation, or investigation made of, for, or by a governmental body;
. . .
(3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body;
. . .
(5) all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate;
. . .
(8) a statement of the general course and method by which an agency's functions are channeled and determined, including the nature and requirements of all formal and informal policies and procedures;
(9) a rule of procedure, a description of forms available or the places at which forms may be obtained, and instructions relating to the scope and content of all papers, reports, or examinations. Act of May 25, 1999, 76th Leg., R.S., ch. 1319, §5, 1999 Tex. Sess. Law Serv. 4500, 4501 (Vernon) (to be codified as an amendment to Gov't Code §552.022);
(10) a substantive rule of general applicability adopted or issued by an agency as authorized by law, and a statement of general policy or interpretation of general applicability formulated and adopted by an agency; [and]
(11) each amendment, revision, or repeal of information described by Subdivisions(7)-(10);
. . .
Therefore, if any of the subsections of section 552.022 describe requested information that you have not released to the requestor, then it is public information and it is not excepted from public disclosure. It must be released.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US