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October 5, 2000

Ms. Julie Joe
Assistant Attorney General
Assistant Public Information Coordinator
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548

OR2000-3825

Dear Ms. Joe:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 140938.

The Office of the Attorney General (the "OAG") received a written request for the Civil Investigative Demand ("CID") issued to Waste Management Industries, Inc. You contend that the requested information is excepted from disclosure under section 552.103 of the Government Code.

A governmental body has the burden of providing relevant facts and documents to show that section 552.103 is applicable in a particular situation. The test for meeting this burden is a showing 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). A governmental body must meet both prongs of this test for information to be excepted under section 552.103. Additionally, the governmental body must demonstrate that the litigation was pending or reasonably anticipated on the date it received the records request. Gov't Code 552.103(c).

You inform this office that [t]he CID in question is related to reasonably anticipated litigation. It was issued by the [OAG] pursuant to its enforcement authority granted in Tex Bus. & Com. Code 15.10, the part of the statute that charges the OAG with responsibility for enforcing the Texas Free Enterprise and Antitrust Act of 1983. The CID was issued as part of an active OAG investigation into suspected antitrust violations and seeks production of information that is relevant to its investigation. The investigation is ongoing, and based on the facts obtained to date, it appears that there is a reasonable likelihood that the conduct being investigated would violate the Texas Fee Enterprise and Antitrust Act. Therefore, at some future time, the OAG is reasonably likely to initiate litigation to prohibit this conduct and/or punish these violations.

Based on your representations, we conclude that you have established that the requested CID "relates" to reasonably anticipated litigation for purposes of section 552.103 of the Government Code. We further conclude that the litigation was anticipated on the date the OAG received the records request.

We note that the OAG issued the CID to a potential defendant. Absent special circumstances, once information has been obtained by all parties to the litigation, e.g., through discovery or otherwise, no section 552.103 interest exists with respect to that information.(1) Open Records Decision Nos. 349 (1982), 320 (1982). In this instance, however, you explain that "it is extremely likely that [other] potential defendants will be discovered during the course of this OAG investigation." Because you represent that the requested CID relates to potential litigation against parties who have not had access to this document, we conclude that the OAG may withhold the CID at this time pursuant to section 552.103 of the Government Code.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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,

Michael J. Burns
Assistant Attorney General
Open Records Division

MJB/RWP/ljp

Ref: ID# 140938

Encl. Submitted documents

cc: Ms. Mia F. Cohen
Jones Day
51 Louisiana Avenue NW
Washington, D.C. 20001
(w/o enclosures)


 

Footnotes

1. We also note that the applicability of section 552.103 ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).
 

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