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December 6, 2000

Mr. Jeffrey A. Davis
McGinnis, Lochridge & Kilgore, L.L.P.
3200 One Houston Center
1221 McKinney Street
Houston, Texas 77010

OR2000-4618

Dear Mr. Davis:

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# 141869.

The Houston Independent School District (the "school district"), which you represent, received a request for various types of information regarding the school district's "site-based management" policies. You claim that the requested information is excepted from disclosure under sections 552.103, 552.107, and 552.111 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted sample of information.(2)

As a preliminary matter, we address the history of the request for information and the school district's request for a decision. In response to the original request for information, which the school district received on September 13, 2000, the school district submitted to this office a timely request for a decision along with comments stating the exceptions it believed applied to the requested information and the reasons these exceptions applied. The school district sent this request for a decision and comments to this office on September 27, 2000, the tenth business day after it had received the request for information. See Gov't Code 552.301. Subsequently, on October 4, 2000, the fifteenth business day after receiving the request for information, the school district timely submitted to this office the responsive documents. See id. On that same date, the school district also sent the requestor a letter asking for clarification of the request. As a result of the request for clarification, the requestor and the school district engaged in a series of correspondence which resulted in a partial narrowing of the request (the requestor qualified several request items with time limits), but also a partial broadening (the requestor changed the scope of the request from documents within the possession of the Central Administrative Officers to documents "as may exist from any and every school campus in HISD relating to site-based management."). We find that as of October 11, 2000, the date on which the school district received the requestor's letter broadening the request for information, the request for information at issue in this case substantively changed so as to constitute a new request for information. Consequently, we consider the school district's submission of additional documents, sent to this office on November 1, 2000 to be timely. See Gov't Code 552.301. Therefore, this letter-ruling applies to the documents submitted as "Exhibit A" that were enclosed in the school district's letter to this office dated November 1, 2000. We note that these documents contain all of the documents that had been previously submitted as "Exhibit D" with the school district's letter dated October 4, 2000, as well as additional documents.

Next, we address the fact that the documents at issue contain completed materials which must be released under section 552.022(a)(1) of the Government Code. The Seventy-sixth Legislature amended section 552.022 of the Government Code to make certain information expressly public, and therefore not subject to discretionary exceptions to disclosure. Gov't Code 552.022. Section 552.022 now states in relevant part:

  • Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and are not excepted from required disclosure under this chapter unless they are expressly confidential under other law.

Gov't Code 552.022. One such category of expressly public information under section 552.022 is "a completed report, audit evaluation, or investigation made of, for, or by a governmental body, except as provided by [s]ection 552.108 . . . ." Gov't Code 552.022(a)(1). For the purposes of section 552.022(a), sections 552.103, 552.107, and 552.111 of the Government Code do not constitute "other law" that makes information expressly confidential. See Open Records Decision No. 665 at 2 n.5 (2000). Therefore, as prescribed by section 552.022(a)(1), the documents that we have marked must be released to the requestor.

In regard to the remaining submitted information, we now turn to the school district's argument regarding section 552.103. 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 was pending or reasonably anticipated on the date the request was received, and (2) the information at issue is related to that litigation. Gov't Code 552.103; 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). The governmental body must meet both prongs of this test for information to be excepted under section 552.103.

You explain that the requestor represents parties who have filed suit against the school district in regard to the fatal stabbing of a student by another student. Moreover, you have submitted a copy of the petition to show that the school district is currently a party to pending litigation in Rivera v. Houston Independent School District., No. H-00-2794 (S.D. Tex., filed Aug. 15, 2000). Moreover, you have submitted the school district's motion to dismiss as well as the plaintiffs' responsive motion to show that the school district's policy-making is relevant to the plaintiffs' claim of a constitutional violation. Based on our review of the submitted pleadings, the school district's argument, and the remaining submitted information, we find that the remaining submitted information relates to the pending litigation. Accordingly, we find that the school district has met its burden under section 552.103 and, consequently, it may withhold the remaining submitted information under that provision.

We note, however, that 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). 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).

In conclusion, the school district must release the documents we have marked under section 552.022(a)(1). However, the school district may withhold the remainder of the submitted information under section 552.103, to the extent it has not been seen by the opposing parties, until the pending litigation ends.(3)

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 Hadassah Schloss at 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,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF\er

Ref: ID# 141869

Encl: Submitted documents

cc: Mr. David W. Showalter
Attorney at Law
5231 Bellaire Boulevard
Bellaire, Texas 77401-3902
(w/o enclosures)


 

Footnotes

1. The school district actually raises section 552.101 in order to claim "attorney work product." However, because section 552.111 is the proper exception to raise in regard to a claim of attorney work product, we interpret the school district's argument as invoking section 552.111.

Additionally, the school district has withheld some of the information responsive to the request as that information falls under the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. 1232g. In Open Records Decision No. 634 (1995), this office concluded that (1) an educational agency or institution may withhold from public disclosure information that is protected by FERPA, and excepted from required public disclosure by sections 552.026 and 552.101 without the necessity of requesting an attorney general decision as to those exceptions, and (2) an educational agency or institution that is state-funded may withhold from public disclosure information that is excepted from required public disclosure by section 552.114 as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception.

2. We assume that the "representative sample" of records submitted to this office is truly representative of all of the information at issue. 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 those submitted to this office.

3. Because sections 552.022(a)(1) and 552.103 are dispositive of this matter, we do not address your other claimed exceptions.
 

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