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John Cornyn

March 9, 1999

Ms. Tina Plummer
Open Records Coordinator
Texas Department of Mental Health & Mental Retardation
P.O. Box 12668
Austin, Texas 78711-2668


Dear Ms. Plummer:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 122570.

The Department of Mental Health and Mental Retardation ("MHMR") received several requests for information regarding John C. Womble, M.D. You have supplied the responsive information for our review, contending that it is excepted from disclosure by sections 552.101 and 552.103 of the Government Code. We have considered the exceptions you claim and have reviewed the documents at issue.

We note that, although the requests are all date-stamped by MHMR Quality Oversight Department as received "DEC 8 1998," they bear various dates of request, indications of to whom they were addressed, and assigned request numbers. Apparently these requests were made to various employees of MHMR and subsequently routed to the Open Records Coordinator. Request number 111098a is dated "11/10/98" while request number 111098b is dated "12/5/98." In the absence of representations to the contrary, we assume that request number 111098 consists of parts a and b and that this request was completed and received December 5, 1998. If this assumption is in error, and request number 111098a was received and complete on November 11, 1998, MHMR's request for opinion vis-a-vis this request was not timely. See Gov't Code 552.301, 552.302. As none of the information responsive to that request is confidential by law, if the request for opinion was not timely made, MHMR must release all information in its possession that is responsive to request number 111098a.

We now turn to your argument raised under section 552.103(a), the "litigation exception." This statute excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. The governmental body 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. 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).

You have provided a copy of the plaintiff's original petition filed in the case styled Dr. John Womble, M.D. v Texas Department of Mental Health and Retardation, and numbered 98-10558, said case having been filed in the 200th District Court, Travis County Texas. You have thereby demonstrated that litigation in this matter is pending. From our review of the submitted materials we conclude that the responsive information is related to this lawsuit and is therefore subject to section 552.103(a) of the Government Code.

We note that the requesting individual is also the opposing party to this litigation and that he has previously had access to some of the records at issue. Absent special circumstances, once information has been obtained by the opposing party in the litigation, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Information previously made available to the requestor must therefore be released unless otherwise excepted from disclosure. 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).

Finally, some of the requested information is confidential by law and must not be released even if the opposing parties to the litigation have seen it or the litigation has concluded. If you receive a subsequent request for the information, you should re-assert your arguments against disclosure under section 552.101 of the Government Code at that time. Note that distribution of confidential information is a criminal offense. Gov't Code 552.352.

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 questions about this ruling, please contact our office.


Michael Jay Burns
Assistant Attorney General
Open Records Division


Ref: ID# 122570

Enclosures: Submitted documents

cc: Mr. John Womble
P.O. Box 1669
Big Spring, Texas 79721
(w/o enclosures)


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