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April 6, 2000

Mr. David B. Casas
Assistant City Attorney
City of San Antonio
P.O. Box 839966
San Antonio, Texas 78283-3966

OR2000-1342

Dear Mr. Casas:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133796.

The City of San Antonio (the "city") received four requests for all records relating to a city employee. 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 have reviewed the submitted representative sample of information.(1)

First, the representative sample includes a billing voucher from the city's treasury division. This constitutes "information in an account, voucher, or contract relating to the receipt . . . of public or other funds by a governmental body." Gov't Code 552.022(a)(3). Information enumerated under section 552.022 of the Government Code is public information and not excepted from required disclosure under chapter 552 of the Public Information Act unless it is expressly confidential under other law. Gov't Code 552.022(a). You raise only section 552.103. Section 552.103 is an exception under the Public Information Act and is not other law that makes the requested information confidential. Accordingly, pursuant to section 552.022(a)(3), the billing voucher is public, and we have marked the information that the city must release.

Further, the representative sample includes mental health records. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 611.002 of the Health and Safety Code makes confidential communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional. See also Health & Safety Code 611.001 (defining "patient" and "professional").

The submitted mental health records may not be released except in accordance with sections 611.004 and 611.0045 of the Health and Safety Code. Health & Safety Code 611.002(b); see id. 611.004, 611.0045. We note that the requestor represents the individual who is the subject of the mental health records. Section 611.004(a)(4) provides that an exception to confidentiality exists when a person has the written consent of the patient.

Section 552.103(a) excepts from disclosure information relating to litigation to which a governmental body is or may be a party. The governmental body has the burden of providing relevant facts and documents to show that section 552.103(a) is applicable in a particular situation. To show that section 552.103 is applicable, the governmental body must demonstrate 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).

You have submitted a copy of an original petition filed by the requestor which names the city as a defendant. We have reviewed the petition and the representative sample of the requested information and conclude that the requested documents relate to the requestor's client's duties as a city employee, and that her lawsuit alleges tortious behavior on the part of the city and its employees in the workplace. We conclude that litigation is pending, and that the documents submitted are related to the lawsuit for purposes of section 552.103. Thus, you may withhold some of the requested information from public disclosure under section 552.103.

We note that the opposing party has had access to most of the submitted documents. 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 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).

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/ljp

Ref: ID# 133796

Encl. Submitted documents

cc: Mr. Hugo Xavier De Los Santos
Attorney at Law
6800 Park Ten Boulevard, Suite 123 N.
San Antonio, Texas 78213
(w/o enclosures)


 

Footnotes

1. In reaching our conclusion here, 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) (where requested documents are numerous and repetitive, governmental body should submit representative sample; but if each record contains substantially different information, all must be submitted). 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.
 

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