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August 10, 2000

Ms. Sara Shiplett Waitt
Senior Associate Commissioner
Legal Compliance, MC 110-1A
Texas Department of Insurance
P.O. Box 149104
Austin, Texas 78714-9104

OR2000-3046

Dear Ms. Waitt:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137900.

The Texas Department of Insurance (the "department") received a request for information concerning a complaint against a specific engineer. You claim that the requested information is excepted from disclosure under sections 552.103, 552.107, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the 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(a) is applicable, the department must demonstrate that (1) litigation has been pending or reasonably anticipated at least since the date that the board received the request for information, and (2) the information at issue is related to that litigation. Gov't Code 552.103(c); 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). Contested cases conducted under the Administrative Procedure Act, chapter 2001 of the Government Code, are considered litigation under section 552.103. Open Records Decision No. 588 at 7 (1991). Section 552.103 requires concrete evidence that litigation may ensue. To demonstrate that litigation is reasonably anticipated, the department must furnish evidence that litigation is realistically contemplated and is more than mere conjecture. Open Records Decision No. 518 at 5 (1989). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986).

You explain that the enforcement section of the department currently has a case pending regarding the named engineer. Moreover, the submitted documents indicate that this case, or its underlying investigation, has been pending at least since the date the department received the request for information. Based on your representations and our review of the submitted information, we conclude that you have shown that litigation involving the department is pending. Furthermore, we find that the requested information relates to the anticipated litigation. Therefore, the submitted information is subject to section 552.103.

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 and such information must be disclosed. Open Records Decision Nos. 349 (1982), 320 (1982). It appears that many of the submitted documents have been seen by the opposing party. The department may not withhold such documents under section 552.103, and must therefore, release them to the requestor. In addition, the applicability of section 552.103(a) ends once the litigation concludes. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).(1)

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,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF\er

Ref: ID# 137900

Encl: Submitted documents

cc: Ms. A. Elizabeth Colvin
Wiseman, Durst & Owen
1004 West Avenue
Austin, Texas 78701-2019
(w/o enclosures)

Summary:

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION

The following file is ready for issuance. The draft ruling is attached. The final ruling is due on August 10, 2000.

137900: The Texas Department of Insurance (the "department") received a request for information concerning a complaint against a specific engineer. The department has explained, and the documents themselves show, that the requested information relates to a pending enforcement action initiated by the department against the engineer in question. Therefore, the submitted documents are subject to section 552.103. However, the department must release information already seen by the opposing party. (A substantial number of documents appear to have been seen by the engineer.)


 

Footnotes

1. Because section 552.103 is dispositive of this matter, we do not address your other arguments. We note, however, that the department has not claimed that any other exception applies to the documents that appear to have been seen by the opposing party. We have marked these documents with blue tabs.
 

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