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July 25, 2000

Mr. Marcus W. Norris
City Attorney
City of Amarillo
P.O. Box 1971
Amarillo, Texas79105-1971

OR2000-2809

Dear Mr. Norris:

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# 137337.

The City of Amarillo (the "city") received a request for all documents contained in the requestor's personnel file. 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 information you submitted. We also received and have reviewed the requestor's letter to this office regarding the city's request for this ruling.

Initially we note that the submitted records contain information that appears to be subject to required public disclosure under section 552.022(a) of the Government Code. Section 552.022(a) provides in relevant part:

(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

. . .

(17) information that is also contained in a public court record[.]

Gov't Code 552.022(a)(17). Section 552.103 of the Government Code is not other law, under section 552.022(a), that makes any of the information enumerated by section 552.022(a) confidential. See Open Records Decision No. 665 at 2 n.5 (2000) (explaining that section 552.103 is a discretionary exception to disclosure that a governmental body may waive). Accordingly, if the legal document that we have labeled with a green flag also was filed with a court, it is subject to required public disclosure under section 552.022(a)(17) and must be released.

As amended by the Seventy-sixth Legislature, section 552.103 of the Government Code, the "litigation exception," provides in relevant part:

(a) Information is excepted from [required public disclosure] 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 a party.

. . .

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

Gov't Code 552.103(a), (c). The governmental body has the burden of providing relevant facts and documents sufficient to establish the applicability of section 552.103 to the information that it seeks to withhold. To sustain this burden, the governmental body must demonstrate that: (1) litigation is pending or reasonably anticipated and (2) the information in question is related to that litigation. See 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 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); see also Open Records Decision No. 551 at 4 (1990). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. Id.

The question of whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). To establish that litigation is reasonably anticipated, a governmental body must provide this office with "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Id. Among other examples, this office has concluded that litigation was reasonably anticipated where the prospective opposing party filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). See Open Records Decision No. 336 (1982). In this instance, you inform us that the requestor has filed a complaint with the EEOC alleging employment discrimination by the city. You have provided this office with a copy of the EEOC's Notice of Charge of Discrimination. Based on your representations, the EEOC notice, and our review of the submitted personnel records, we conclude that the requested information is related to reasonably anticipated litigation for the purposes of section 552.103.

In reaching this conclusion, we assume that the city does not seek to withhold any information that the requestor, as the prospective opposing party in the anticipated litigation, previously has seen or to which she already has had access. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing a party seeking information relating to that litigation to obtain it through discovery procedures. See Open Records Decision No. 551 at 4-5 (1990). To the extent that the opposing party to anticipated litigation has seen or had access to information relating to the litigation, there is no interest in withholding such information from disclosure under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). As most of the submitted information is not protected from disclosure for this reason, we have attached red flags to the documents that section 552.103 permits the city to withhold. Additionally, the applicability of section 552.103 ends once the related litigation concludes. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

In summary, the requested information relates to reasonably anticipated litigation against the city under section 552.103 of the Government Code. However, section 552.103 does not permit the city to withhold information that also is a matter of public court record or information that the requestor previously has seen or to which she already has had access. All such information must be released. The city may withhold the information that we have marked with red flags under section 552.103.

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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ljp

Ref: ID# 137337

Encl. Submitted documents

cc: Ms. Mimi McBroom
120 Robilyn
McKinney, Texas 75069
(w/o enclosures)


 

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