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May 8, 2000

Mr. Roland Castaneda
General Counsel
Dallas Area Rapid Transit
P.O. Box 660183
Dallas, Texas 75206-0163

OR2000-1779

Dear Mr. Castaneda:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was inadvertently assigned ID#s 134943 and 134842. We have combined these files and consider the issues presented in this single ruling assigned ID#134842.

The Dallas Area Rapid Transit ("DART") received a request for information relating to Invitation to Bid # B-99034885, as well as for information relating to certain named DART employees. You claim that the requested information is excepted from disclosure under sections 552.101, 552.103, 552.107, 552.110, 552.111, 552.117 and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted sample information.(1)

You contend that all of the requested information is excepted from disclosure under section 552.103 of the Government Code. 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, DART must furnish evidence that litigation is realistically contemplated and is more than mere conjecture. Open Records Decision No. 518 at 5 (1989).

In this case, you inform our office that the requestor filed a protest against award of a contract pursuant to Invitation for Bid B-99034885 which was denied by DART. You state that "DART considers [the requestor's] protest letter to meet the requirements of its procurement regulations as prerequisite for litigation." Furthermore, you have submitted a copy of a letter from the requestor, dated February 18, 2000 and submitted to our office in "Exhibit B", which states that the requestor will do whatever necessary to protect its investors' and owners' wealth. This letter further provides that the requestor "will be filing a State/Federal action[] against [particular DART employees] for tortiously interfering with a contract." You assert that this letter, "coupled with the status of the procurement protest at the time of the request and the requestor's other verbal threats of litigation[,] lead DART to believe in good faith that a lawsuit will likely be filed." After reviewing your arguments and the submitted information, we agree that litigation is reasonably anticipated for purposes of section 552.103.

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 "will likely involve claims related to the solicitation at issue in this request, whether the procurement process was regular, and the qualifications of the successful and unsuccessful bidders." You further state that "the actions of various DART employees may be called into question" during the litigation. After reviewing your arguments and the submitted documents, we agree that the requested information is related to the anticipated litigation under section 552.103(a). Therefore, except as noted below, we find that you may withhold the requested information under section 552.103.

We note, however, that the requestor's signature appears on some of the submitted documents. Generally, 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 concludes.(2) Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Because section 552.103 is dispositive, we do not address your other arguments against disclosure at this time.

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,

Kathryn S. Knechtel
Assistant Attorney General
Open Records Division

KSK/ljp

Ref: ID# 134842

Encl. Submitted documents

cc: Mr. Michael A. Elam
Paradigm Business Communications
3920 Guston Hall
Plano, Texas 75025
(w/o enclosures)

cc: Mr. A.J. Bart
A.J. Bart, Inc.
4130 Lindeberg Drive
Addison, TX 75224
(w/o enclosures)


 

Footnotes

1. We assume that the "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. However, we note that the submitted documents include information that is confidential by law. Information that is confidential by law must not be released even after the litigation concludes. See Gov't Code 552.353 (providing penalties for the release of confidential information).
 

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