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March 22, 2000

Ms. Susan Combs
Commissioner
Texas Department of Agriculture
P. O. Box 12847
Austin, Texas 78711

OR2000-1121

Dear Commissioner Combs:

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# 134322 (TDA- PIR2000-044).

The Texas Department of Agriculture (the "department") received a written request for "all findings" related to the department's investigation of a complaint regarding the improper use of insecticides. You indicate that the department has released some responsive information to the requestor. You seek to withhold one document responsive to the request pursuant to, inter alia, section 552.103 of the Government Code.(1)

You contend that the document at issue, which you characterize as a "case summary and enforcement recommendation," is excepted from required public disclosure pursuant to section 552.103 of the Government Code. To secure the protection of section 552.103, a governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation to which the governmental body is a party. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.-Austin 1997, no pet.); Open Records Decision No. 588 at 1 (1991).

The department is authorized to investigate pesticide-related complaints and may assess penalties for violations of chapters 75 and 76 of the Agriculture Code. Agric. Code 12.020, 76.1555(a). Proceedings conducted after assessment of a department penalty are subject to the Administrative Procedure Act. Id. at 76.1555(h). You state that the document at issue relates to a pending enforcement action currently before the department. Although you inform us that an "agreement" resolving the case is pending, you further inform us "neither the Commissioner nor her designee have yet reviewed the matter and a final decision regarding administrative action has not been rendered at this time." Based on your representations and our review of the document at issue, we conclude that you have established that the document at issue relates to reasonably anticipated litigation to which the department would be a party. Texas Legal Found., 958 S.W.2d at 483. The department therefore may withhold this record pursuant to section 552.103.

We note that if the opposing party in the litigation has seen or had access to any of the information in these records, there is no section 552.103(a) interest in withholding that information from the requestor. Open Records Decision Nos. 349 (1982), 320 (1982). In addition, the applicability of section 552.103(a) ends once the litigation concludes. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

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 Department 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,

Kathryn S. Knechtel
Assistant Attorney General
Open Records Division

KSK/RWP/ljp/cwt

Ref.: ID# 134322

Encl. Submitted documents

cc: Mr. Richard Kocurek
Route 4, Box 113
Robstown, Texas 78380
(w/o enclosures)


 

Footnotes

1. Because we resolve your request under section 552.103, we do not address your other arguments for non-disclosure.
 

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