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July 19, 2000

Mr. Alan J. Bojorquez
Bickerstaff, Heath, Smiley, Pollan,
Kever & McDaniel,L.L.P.
816 Congress Avenue
Austin, Texas 78701-2443

OR2000-2718

Dear Mr. Bojorquez.:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137200.

The City of Georgetown (the "city"), which you represent, received a written request for information related to the Dove Springs Wastewater Treatment Plant ("DSWTP"). You state that the city is in the process of releasing much of the requested information to the requestor. You contend that the submitted information is excepted from disclosure pursuant to sections 552.101, 552.103, 552.107, and 552.111 of the Government Code.(1) We have considered the exceptions you claim and have reviewed the submitted information.

The City of Georgetown has a pending lawsuit filed against the Office of the Attorney General concerning the required public release of the information contained in Exhibit C1. In re City of Georgetown v. Cornyn, No. GV000536 (126th Dist. Ct., Travis County, Tex., filed May 5, 2000, pet. granted). Accordingly, we decline to issue a ruling regarding this particular information, and will allow the Texas Supreme Court to resolve the issue of whether this information must be released to the requestor.

You claim that some of the submitted documents are protected from disclosure by the attorney-client privilege, Texas Rules of Evidence Rule 503, the work product privilege, Texas Rules of Civil Procedure Rule 192.5, and the consulting expert privilege, Texas Rule of Civil Procedure 192.3(e). You rely upon these discovery rules to assert that portions of the submitted information are confidential by law pursuant to section 552.101 of the Government Code. However, our office has previously determined that "information [which] may be privileged in the civil discovery context . . . may not be withheld under section 552.101 of the Government Code." Open Records Decision Nos. 647 at 2 (1996), 575 at 2 (1990) (stating explicitly that discovery privileges are not covered under the predecessor to section 552.101). Accordingly, none of the submitted information may be withheld pursuant to section 552.101.

We note that information you have submitted as Exhibits "C2" in part, "C10" in part, "C16" and "C31" appear to be contracts. Contracts related to the expenditure of public funds are expressly made public by section 552.022(a)(3) of the Government Code. Similarly, Exhibits "C18" in part, "C34," and "C35" in part appear to be completed reports, which are expressly made public by section 552.022(a)(1) of the Government Code. Additionally, Exhibits "C14," "C15" and "C17" appear to be information used to estimate the expenditure of public funds. Such information is expressly public under section 552.022(a)(5). Information made public under section 552.022 may not be excepted from required disclosure unless it is confidential under other law. See Gov't Code 552.022(a). "Other law," we believe, means the constitutional right to privacy, confidentiality statutes, and judicial decisions recognizing the common law right to privacy and the right to protect trade secrets from public disclosure. You claim that the information in Exhibits C10 and C16 is excepted from disclosure under sections 552.103, 552.107, and 552.111 of the Government Code. Similarly, you claim that Exhibits C18, C31, C34, and C35 are excepted from disclosure under sections 552.103 and 552.111. Your claimed exceptions under sections 552.103, 552.107, and 552.111 are not other law that makes the information confidential. Therefore, we find that sections 552.022(a)(1), (a)(3), and (a)(5) mandate the release of Exhibits C14, C15, C16, C17, C31, and C34 in their entirety, and the marked portions of Exhibits C2, C10, C18 and C35. The above-listed information must be released to the requestor.

We will now determine whether you may withhold from disclosure the remaining submitted information. 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 at the time of the request, 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 inform us of the following:

The City is currently involved in litigation regarding the subject of this request, the Dove Springs Wastewater Treatment Plant. The first case, Ethel Domel and Norman Domel v. City of Georgetown, Texas, Cause No. 99-1297, was ruled on this month by the Texas Supreme Court but all appeals have not yet been exhausted. A companion case, Mary Raum and Albert Raum v. City of Georgetown, Texas, Cause No. 94-021-C26, is awaiting trial pending the outcome of the above-cited case. Also, this information is related to a third lawsuit in which the City is a party along with the Attorney General and Austin American-Statesman. In Re:City of Georgetown and George Russell, In his official capacity as Acting City Manager and Officer for Public Information, Cause No. 00-0453. The case is currently pending before the Texas Supreme Court.

Based upon your assertions and a careful review of the submitted information, we agree that you have shown that litigation is pending and that the submitted information relates to the pending litigation. Therefore, you may withhold from disclosure under section 552.103 the remaining submitted information.

In summary, due to pending litigation, we decline to issue a ruling regarding the information contained in Exhibit C1. Sections 552.022(a)(1), (a)(3), and (a)(5) mandate the release of completed reports, contracts, and information used to estimate the expenditure of public funds. Such information contained in the submitted information must be released to the requestor. None of the submitted information may be withheld from disclosure under section 552.101 of the Government Code in conjunction with the Texas Rules of Civil Procedure and the Texas Rules of Evidence. You may withhold from disclosure the remaining submitted information under section 552.103.(2)

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,

Carla Gay Dickson
Assistant Attorney General
Open Records Division

CGD/ljp

Ref: ID# 137200

Encl. Submitted documents

cc: Ms. Maeve Reston
Austin American-Statesman
203 East Main
Round Rock, Texas 78664
(w/o enclosures)


 

Footnotes

1. In your original correspondence to this office, you raised exceptions to disclosure under sections 552.109, 552.110 and 552.228 of the Government Code. However, you offered no support for withholding the submitted information pursuant to these exceptions. Therefore, this ruling does not address these claimed exceptions to disclosure.

2. Since section 552.103 of the Government Code is dispositive of the information not made expressly public by section 552.022, we do not address your additional claims.
 

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