|Office of the Attorney General - State of Texas
July 26, 2000
Ms. Lan P. Nguyen
Dear Ms. Nguyen:
You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 137523.
The City of Houston (the "city") received two requests from Dr. Bernard Garrett. The first request seeks information related to employee performance evaluations for the prior five year period for persons employed in the city's "Public Works and Engineering Dept./Neighborhood Protection Division."(1) You indicate that you have made available to Dr. Garrett his own employee performance evaluation. Dr. Garrett's second request seeks information related to a particular job posting identified as PN # 76752. The city received two additional requests, each from different requestors, seeking the same information as that identified in Dr. Garrett's second request. You have submitted for our review a representative sample of the responsive information.(2) You claim that all of the submitted information is excepted from required public disclosure under section 552.103 of the Government Code. You also assert that certain portions of the submitted information are excepted from disclosure pursuant to section 552.122 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.
Section 552.103 of the Government Code states in pertinent part::
(a) 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 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.
To secure the protection of section 552.103(a), a governmental body must demonstrate that requested information "relates" to a pending or reasonably anticipated judicial or quasi-judicial proceeding. Open Records Decision No. 588 (1991). A governmental body has the burden of providing relevant facts and documents to show the applicability of an exception in a particular situation. The test for establishing that section 552.103(a) applies is a two-prong showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Texas Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin, 1997), Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).
You indicate that the city is involved with two of the requestors in pending litigation and that the matter is currently before the United States Fifth Circuit Court of Appeals. You have included the appellate brief the city submitted to the Fifth Circuit court. Additionally, you have demonstrated that two of the requestors filed claims of discrimination with the Texas Commission on Human Rights and the Equal Employment Opportunity Commission (the "EEOC"). This office has stated that a pending EEOC complaint demonstrates that litigation is reasonably anticipated for purposes of section 552.103. Open Records Decision Nos. 386 at 2 (1983), 336 at 1 (1982). Although the EEOC has dismissed the claims, the dismissal notices you have provided indicate that the claimants were granted the right to file suit within ninety days of March 31, 2000. We therefore agree that the city reasonably anticipated litigation on the claims at the time the city received the present information requests. See Gov't Code § 552.103(c). Furthermore, we believe you have demonstrated that the requested information is related to both the pending and reasonably anticipated litigation. Thus, we conclude that the requested information may be withheld under section 552.103 of the Government Code.(3)
Generally, however, 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 No. 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. Further, the applicability of section 552.103(a) ends once the litigation has been 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 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.
Carla Gay Dickson
Ref: ID# 137523
Encl. Submitted documents
cc: Dr. Bernard Garrett
Mr. Willie E. Pratt
Mr. Arthur C. Hypolite
1. In correspondence to this office, Dr. Garrett appears to narrow his request to seek only information pertaining to "current Neighborhood Protection Division employees within the Code Enforcement Section."
2. 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). 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.
3. Since section 552.103 is dispositive of the information at issue, we do not address your additional claim under section 552.122 of the Government Code.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US