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January 5, 2000

Mr. James G. Nolan
Supervising Attorney
Information Release
Texas Workforce Commission
101 E. 15th Street
Austin, Texas 78778-0001

OR2000-0017

Dear Mr. Nolan:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID#130968.

The Texas Workforce Commission ("TWC") received a request for copies of witness statements taken regarding an incident involving Pedro Cardenas and exposure to asbestos. In response to this request, you have provided to our office "the only documents which have been located that could arguably be considered witness statements." You claim that the documents are excepted from disclosure under section 552.103(a) of the Government Code. You further assert that the document labeled "Exhibit B" is excepted from disclosure under sections 552.101, 552.107, and 552.111. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.103(a) states:

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 as party.

For information to be excepted from public disclosure by section 552.103(a), (1) litigation involving the governmental body must be pending or reasonably anticipated and (2) the information must related to the litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (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).

Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). 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). The fact that a governmental body received a claim letter that it represents to the attorney general to be in compliance with the notice requirements of the Texas Tort Claims Act shows that litigation is reasonably anticipated. See Open Records Decision No. 638 at 4 (1996). In this case, you represent to our office that the requestor's letter dated October 15, 1999 is a claim letter in compliance with the notice requirements of the Texas Tort Claims Act. Therefore, we agree that litigation is reasonably anticipated.

You further represent to our office that the requested documents relate to the subject matter of the anticipated litigation. You state that the anticipated litigation concerns a complaint of asbestos exposure at TWC's facility, and that the requested documents contain information regarding the presence of asbestos and the circumstances surrounding the claimant's alleged exposure. Therefore, we agree that the requested information is related to the anticipated litigation under 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.

Therefore, we find that only the document marked as "Exhibit B" is excepted from disclosure under 552.103(a). The other documents are correspondence between the requestor's client and the TWC. These documents, marked as exhibits A-1 through A-5, are not excepted from disclosure under 552.103(a).

We also note that 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). Because we are able to make a determination regarding Exhibit B under section 552.103(a) of the Government Code, we need not address your arguments under sections 552.101, 552.107, and 552.111.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Dep't of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/KSK/ljp

Ref: ID#130968

Encl. Submitted documents

cc: Mr. David E. Martinez
The Law Offices of Diaz & Uresti, P.C.
1114 SW Military Drive, Suite 102
San Antonio, Texas 78221
(w/o enclosures)


 

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