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October 6, 2000

Mr. David Anderson
General Counsel
Office of Legal Services
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1484

OR2000-3864

Dear Mr. Anderson:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 140020.

The Texas Education Agency ("TEA") received a request for (1) a written complaint filed with it on April 10, 2000, concerning the requestor and (2) a notice of intent to assess a civil penalty and investigative fee sent to another driving school as a result of various investigations. You claim that the requested information is excepted from disclosure under sections 552.101 and 552.103(a) of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information.(1)

You claim that the written complaint filed against the requestor on April 10, 2000, relates to reasonably anticipated litigation and is therefore excepted from public disclosure under section 552.103(a) 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). TEA must meet both prongs of this test for information to be excepted under 552.103(a). 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).

You indicate that the information in Exhibit 2 concerns an investigation in which TEA anticipates there will be contested case proceedings. We assume that, in referring to an investigation and possible contested case proceedings, you are referring to sections 16, 17, and 24 of article 4413(29c) of the Texas Civil Statutes. Section 16 provides that the TEA may deny, suspend, or revoke a license. See V.T.C.A. art. 4413(29c), 16. Section 17 provides that a person aggrieved by the denial, suspension, or revocation may appeal that decision and request an administrative decision. See id. 17. Section 24 provides that the TEA commissioner may also assess sanctions after opportunity for a hearing. See id. 24. Based upon TEA's assertion that litigation is "the next formal step" in this particular investigation, we conclude that litigation is reasonably anticipated. Furthermore, we find that the complaint filed against the requestor on April 10, 2000, is related to that litigation. Thus, Exhibit 2 may be withheld in its entirety under section 552.103(a).(2)

We note that if the opposing party in the litigation has seen or had access to any of the information in these records, there is no section 552.103(a) interest in withholding that information from the requestor. Open Records Decision Nos. 349 (1982), 320 (1982). 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).

You contend that the notice of intent to assess a civil penalty and investigative fee sent to another driving school is also excepted under section 552.103(a) of the Government Code. However, even if we determined that this information relates to reasonably anticipated or pending litigation, both parties to the litigation have had access to the information. Therefore, section 552.103(a) does not allow you to withhold the Exhibit 3. Open Records Decision Nos. 597 at 2 (1991), 551 at 4 (1990). You further contend that certain information within the notice of intent to assess a civil penalty and investigative fee is excepted under section 552.101 of the Government Code because it falls within the informer's privilege. See Gov't Code 552.101; Open Records Decision Nos. 515 at 3 (1988), 208 at 1-2 (1978).

However, we are unable to find any information in the notice that would tend to identify an informant. Therefore, you must release the all of the information in Exhibit 3. In summary, because the information contained in Exhibit 2 relates to reasonably anticipated litigation, you may withhold it pursuant to section 552.103(a) of the Government Code. However, since neither section 552.101 nor 552.103(a) applies to the information contained in Exhibit 3, you must disclose all of the information contained therein.

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 Dep't of Pub. 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,

Nathan E. Bowden
Assistant Attorney General
Open Records Division

NEB/er

Ref: ID# 140020

Encl: Submitted documents

cc: Ms. Linda Wansey
Rio Grande Defensive Driving School
2220 Nolana
McAllen, Texas 78504
(w/o enclosures)


 

Footnotes

1. In reaching our conclusion here, we assume that the "representative sample" of the complaint against the requestor 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. In light of this conclusion, we need not reach the issue of whether any other exceptions apply to the information contained in the complaint against the requestor.
 

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