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John Cornyn

January 11, 1999

Mr. Roland Castaneda
General Counsel
Dallas Area Rapid Transit
P.O. Box 660163
Dallas, Texas 75266-0163


Dear Mr. Castaneda:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 122937.

Dallas Area Rapid Transit (the "DART") received a request for only the financial expenditures associated with attorney's fees in the matter of Patterson v. DART. Thus, this ruling will address the dollar amounts of the funds expended only. You contend that the requested information is excepted from disclosure pursuant to sections 552.103 and 552.107 of the Government Code.

Section 552.103(a), the "litigation exception," excepts from disclosure information relating to litigation to which the state is or may be a party. DART 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 (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). DART must meet both prongs of this test for information to be excepted under section 552.103(a).

You have submitted a copy of the petition from the pending lawsuit. We have reviewed your arguments and conclude that you have shown that litigation is pending. However, we conclude that you have not shown how the requested information is related to the issues in the pending litigation. Accordingly, you may not withhold the submitted information under section 552.103.

You also assert that the requested financial expenditures are excepted from disclosure under section 552.107. Section 552.107(1) of the Government Code protects information that an attorney cannot disclose because of a duty to his client. In Open Records Decision No. 574 (1990), this office concluded that section 552.107(1) excepts from public disclosure only "privileged information," that is, information that reflects the client's confidential communications to the attorney and the attorney's legal advice or opinions. Open Records Decision No. 574 at 5-7 (1990). Section 552.107(1) does not, however, protect purely factual information. Id. We conclude that the requested financial expenditures are not excepted from public disclosure by section 552.107 as they neither reflect the client's

confidential communications to the attorney nor are they an attorney's legal advice or opinions. Accordingly, you must release the requested information.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have any questions about this ruling, please contact our office.

Yours very truly,

Yen-Ha Le
Assistant Attorney General
Open Records Division


Ref: ID# 122937

Enclosures: Submitted documents

cc: Ms. Judi White
Assignments Editor
Fox 4
400 North Griffin Street
Dallas, Texas 75202
(w/o enclosures)


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