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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 18, 2002

Mr. Marigny A. Lanier
Maris & Lanier
1450 Meadow Park Building, LB 702
10440 North Central Expressway
Dallas, Texas 75231

OR2002-7244

Dear Mr. Lanier:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 174413.

The City of Coppell (the "city") received a request for "the Investigation Memo, including all enclosures, exhibits and attachments thereto; and . . . the Memo/Letter of Termination" pertaining to a named former firefighter/paramedic. You state that the city has released the Memo/Letter of Termination and the first and last pages of the Investigation Memo. You state that a portion of the requested information was the subject of a previous ruling from this office. In Open Records Letter No. 2001-5189 (2001), we concluded that the city was required to withhold portions of the submitted information under sections 552.101, 552.102, 552.117, 552.130, and 552.136.(1) Therefore, as you represent that the four criteria for a "previous determination" established by this office in Open Records Decision No. 673 (2001) have been met, the city must withhold the information previously submitted in accordance with Open Records Letter No. 2001-5189 (2001).(2) See Gov't Code 552.301(f); Open Records Decision No. 673 (2001). You claim that a portion of the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information.(3) We have also considered comments submitted by the requestor. See Gov't Code 552.304 (providing that interested party may submit comments stating why information should or should not be released).

We first note that the submitted documents include information that is subject to section 552.022 of the Government Code. Section 552.022 provides that

the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

(10) a substantive rule of general applicability adopted or issued by an agency as authorized by law, and a statement of general policy or interpretation of general applicability formulated and adopted by an agency;

. . .

(13) a policy statement or interpretation that has been adopted or issued by an agency[.]

Gov't Code 552.022(a)(10), (13). We have marked the types of information that are subject to section 552.022(a). The city must release these types of information, unless they are expressly confidential under other law.

You contend that the information subject to the purview of section 552.022(a) is excepted from disclosure under section 552.103 of the Government Code. Section 552.103 is a discretionary exception to disclosure that protects the governmental body's interests and is therefore not other law that makes information expressly confidential for purposes of section 552.022(a). See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App.-Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision No. 522 at 4 (1989) (discretionary exceptions in general). Discretionary exceptions therefore do not constitute "other law" that makes information confidential. As you raise no other exceptions to disclosure of this information, and as we are not aware of any other provision making this information confidential, the city must release the information that we have marked under section 552.022(a).

You claim that pages 2-8 of the Investigation Memo and the remaining attachments thereto are excepted from disclosure under section 552.103. Section 552.103 provides as follows:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

. . . .

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

The city has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing 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, 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). The city must meet both prongs of this test for information to be excepted under 552.103(a).

In this case, you inform us, and have provided documents showing, that litigation is pending in Cause No. 02-03093, in the 160th District Court, Dallas County, Texas, Willard Hester v. City of Coppell. The city is a party to this case. You explain that the submitted information concerns the subject matter of the pending litigation. Based upon your representations and our review of the submitted records, we find that the information at issue is related to the pending litigation. We conclude, therefore, that, to the extent the information at issue was not already released to the public pursuant to the ruling by this office in ORL No. 2001-5189, it is excepted from public disclosure under section 552.103, and may be withheld by the city.

Generally, however, 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. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the pending litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

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,

Cindy Nettles
Assistant Attorney General
Open Records Division
CN/jh
Ref: ID# 174413
Enc. Submitted documents

c: Mr. Arthur Kwast
P.O. Box 1397
Coppell, Texas 75019-1397
(w/o enclosures)


 

Footnotes

1. We note that the Investigation Memo is dated September 14, 2001, which is after the date that the city received the previous request for information. Thus, the Memo was not subject to the previous ruling in ORL No. 2001-5189, as Chapter 552 of the Government Code is not applicable to information that did not exist when this request for information was received. See Open Records Decision No. 555 at 1 (1990).

2. The four criteria for this type of "previous determination" are 1) the records or information at issue are precisely the same records or information that were previously submitted to this office pursuant to section 552.301(e)(1)(D) of the Government Code; 2) the governmental body which received the request for the records or information is the same governmental body that previously requested and received a ruling from the attorney general; 3) the attorney general's prior ruling concluded that the precise records or information are or are not excepted from disclosure under the Act; and 4) the law, facts, and circumstances on which the prior attorney general ruling was based have not changed since the issuance of the ruling. See Open Records Decision No. 673 (2001).

3. 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.
 

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