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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 16, 2002

Mr. D. Craig Wood
Langley & Banack, Inc.
Suite 900 Trinity Plaza II
745 East Mulberry
San Antonio, Texas 78212-3166

OR2002-7174

Dear Mr. Wood:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173755.

The Alamo Community College District (the "district"), which you represent, received a request for copies of "notes, memorandum, or other documents which either reflect what occurred in the August 19, 2002 closed meeting or were utilized in the preparation of the certified agenda." You claim that the requested information, or portions thereof, are excepted from disclosure pursuant to sections 552.101, 552.103, 552.107, and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information. We have also considered comments submitted by a representative of the requestor. See Gov't Code 552.304 (providing that person may submit comments stating why information should or should not be released).

You claim that exhibit G is excepted from disclosure in its entirety as attorney work product pursuant to section 552.111 of the Government Code. We note that a governmental body may withhold attorney work product from disclosure under section 552.111 if it demonstrates that the material was 1) created for trial or in anticipation of civil litigation, and 2) consists of or tends to reveal an attorney's mental processes, conclusions and legal theories. See Open Records Decision No. 647 (1996). The first prong of the work product test, which requires a governmental body to show that the documents at issue were created for trial or in anticipation of litigation, has two parts. A governmental body must demonstrate that 1) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue, and 2) the party resisting discovery or release believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. See id. at 4. The second prong of the work product test requires the governmental body to show that the documents at issue tend to reveal the attorney's mental processes, conclusions and legal theories.

You state that civil litigation was anticipated with the subject architect at the time that the district's attorney prepared the handwritten notes in exhibit G. You also state that the typewritten notes in exhibit G were partially prepared by the district's attorney for the purpose of establishing a defense to a lawsuit that had been previously filed by the requestor. Based on the totality of the circumstances and our review of your arguments and exhibit G, we find that exhibit G was created for trial and/or in anticipation of litigation and consists of or tends to reveal an attorney's mental processes, conclusions and legal theories. Accordingly, we conclude that the district may withhold exhibit G in its entirety as attorney work product pursuant to section 552.111 of the Government Code.(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).

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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division

RJB/lmt

Ref: ID# 173755

Enc. Submitted documents

c: Ms. Lucy Hood
San Antonio Express - News
P. O. Box 2171
San Antonio, Texas 78297
(w/o enclosures)


 

Footnotes

1. Because we base our ruling on section 552.111 of the Government Code, we need not address your remaining claims.
 

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