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August 31, 2000

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

OR2000-3378

Dear Mr. Castañeda:

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# 138560.

Dallas Area Rapid Transit ("DART") received three requests from the same requestor for information relating to the termination of the requestor's employment with DART. You claim that the information is excepted from disclosure under sections 552.101, 552.103, 552.108, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of the information requested.(1)

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 261.201(a) of the Texas Family Code states in relevant part as follows:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

Fam. Code 261.201(a). We believe that some of the information submitted consists of reports, records, and working papers used or developed in an investigation made under chapter 261 of the Family Code. Because you have not cited any specific rule that the investigating agency has adopted with regard to the release of this type of information, we assume that no such regulation exists. Given that assumption, we have marked information that we conclude is confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (construing predecessor statute). Accordingly, DART must withhold the marked documents from disclosure under section 552.101 of the Government Code as information made confidential by law.

Pursuant to section 552.301(e), a governmental body is required to submit to this office within fifteen business days of receiving an open records request a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code 552.301(e). DART submitted a portion of the representative sample of information requested within the 15 business day deadline. However, DART also submitted additional information after the July 11, 2000 deadline. Additionally, although DART claims numerous exceptions from public disclosure for the requested information, you have not labeled the submitted information to indicate which exceptions apply to which parts of the documents. Therefore, as to much of the information submitted, DART has failed to comply with the requirements of section 552.301(e).

Pursuant to section 552.302 of the Government Code, a governmental body's failure to submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code 552.302); Open Records Decision No. 319 (1982). Two of the exceptions which you assert, sections 552.108 and 552.111, are discretionary exceptions(2) and as such, do not constitute compelling reasons to withhold information that is presumed public. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)); 592 at 8 (1991) (governmental body may waive section 552.104, information relating to competition or bidding); 549 at 6 (1990) (governmental body may waive informer's privilege); 522 at 4 (1989) (discretionary exceptions in general). See also Gov't Code 552.007(a); Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475, 476 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive litigation exception, section 552.103). Further, because DART has not marked, labeled, or in any way identified which portions of which documents are excepted from disclosure under section 552.111, this office cannot determine whether that exception applies. As such, for the documents that were not timely-submitted, DART has waived its claimed exceptions under section 552.108 and 552.111.

However, section 552.101 does constitute a compelling reason to withhold information that is presumed public. DART claims that portions of the submitted information are protected under section 552.101 as "information held confidential under case law." You assert that Open Records Decision No. 611 (1992) makes job-related examination scores confidential under section 552.101. However, this decision dealt, not with job-related examination scores, but with records held by law enforcement agencies regarding violence between family members. In Open Records Decision No. 441 (1986), this office found that job-related examination scores of public employees or applicants for public employment are not protected from required public disclosure under section 552.101. As such, you may not withhold any job-related examination scores contained within the submitted records.

We do note, however, that some of the submitted documents constitute criminal history information of some individuals who have applied for employment with DART. Where an individual's criminal history information has been compiled by a governmental entity, the information takes on a character that implicates the individual's right to privacy. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). In this case, we believe that certain individuals' rights to privacy have been implicated in the gathering of this criminal history information. Thus, we conclude that DART must withhold this information under section 552.101 of the Government Code. See id.; see also Gov't Code 411.106(b). We have marked the information that you must withhold under section 552.101.

We next address your claimed exception for the timely-submitted documents under section 552.103 of the Government Code. 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. In order to meet this burden, the governmental body must show that (1) litigation is pending or reasonably anticipated, 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 (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). Section 552.103 requires concrete evidence that litigation may ensue. To demonstrate that litigation is reasonably anticipated, the city 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 state that litigation can reasonably be anticipated in this matter based upon the representations made in the requestor's letters of June 14 and June 19, 2000. However, in his letters to DART, the requestor merely states the he "will consider pursuing a [d]efamation lawsuit[.]" As this statement is mere conjecture, we conclude that DART has not satisfied the requirements of section 552.103. See Open Records Decision No. 331 (1982). Because you have not established that litigation is reasonably anticipated in this matter, DART may not withhold the requested information under section 552.103.

DART also claims that portions of the submitted information are excepted from disclosure under section 552.108 of the Government Code. We will address your claimed exception under this section only as to the timely-submitted documents. Section 552.108 states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code 552.108(a)(1). Generally, a governmental body claiming an exception under section 552.108 must reasonably explain, if the information does not supply the explanation on its face, how and why section 552.108 is applicable. See Gov't Code 552.108, .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You have documents from a pending investigation that were sent to you by the Dallas Police Department via intergovernmental transfer. Thus, we conclude that DART is the proper custodian for the documents at issue, and because the investigation is pending, we believe that the release of some of the information "would interfere with the detection, investigation, or prosecution of crime." See, e.g., Open Records Decision Nos. 474 (1987), 372 (1983) (where incident involving allegedly criminal conduct is still under active investigation or prosecution, section 552.108 may be invoked by any proper custodian of information which relates to incident), Open Records Decision No. 586 (1991) (need of another governmental body to withhold requested information may provide compelling reason for nondisclosure under section 552.108). However, some of the submitted information does not appear to relate to the pending investigation. We have marked the information that you may withhold under section 552.108(a)(1).

In summary, we have marked the offense reports and related information generated by or for the Dallas Police Department's investigation into the alleged crimes that are protected under section 261.201 of the Family Code and must be withheld. We have also marked the criminal history information that must be withheld. DART may also withhold the information we have marked as excepted under section 552.108. The remaining information must be released to the requestor.

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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/ljp

Ref: ID# 138560

Encl. Submitted documents

cc: Mr. Acie Gilkey
8416 Hunnicut Road
Dallas, Texas 75228
(w/o enclosures)


 

Footnotes

1. 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.

2. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties.
 

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