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John Cornyn

June 23, 1999

Ms. Marie E. Galindo
Assistant City Attorney
City of Midland
P.O. Box 1152
Midland, Texas 79702-1152


Dear Ms. Galindo:

You ask whether certain information is subject to required public disclosure under the Texas Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 125481.

The City of Midland (the "city") received an open records request for all records, including videotapes, pertaining to a particular internal affairs investigation. You contend that the requested information is excepted from required public disclosure pursuant to section 552.103 of the Government Code because the records "relate" to reasonably anticipated litigation to which the city may become a party.

To secure the protection of section 552.103(a), a governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation to which the governmental body is a party. Open Records Decision No. 588 (1991). The mere chance of litigation will not trigger section 552.103(a). Open Records Decision No. 452 at 4 (1986) and authorities cited therein. To demonstrate that litigation is reasonably anticipated, the governmental body must furnish concrete evidence that litigation involving a specific matter is realistically contemplated and is more than mere conjecture. Id.

You have submitted to this office for our review a notice of claim letter that the city received from an attorney representing an arrestee who has alleged that one of the arresting officers used unnecessary force. In Open Records Decision No. 638 (1996), this office determined how a governmental body must establish reasonably anticipated litigation when relying solely on a claim letter. We stated that the governmental body must 1) show that it has received a claim letter from an allegedly injured party or his attorney and 2) state that the letter complies with the notice of claim provisions of the Texas Tort Claims Act or applicable municipal statute or ordinance.

In this instance you have made the representation that the notice letter complies with the requirements of the city code. We therefore conclude that you have met your burden of showing that litigation is reasonably anticipated. Also, the requested records "relate" to the anticipated litigation. The city therefore may withhold this information pursuant to section 552.103(a).(1)

In reaching this conclusion, however, we assume that none of the information in the records at issue has previously been made available to the opposing party in the litigation. Absent special circumstances, once information has been obtained by all parties to the litigation, either through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349, 320 (1982). To the extent the opposing party has seen or had access to these records, there would be no justification for now withholding such information from the requestor pursuant to section 552.103(a).

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.


William Walker
Assistant Attorney General
Open Records Division


Ref.: ID# 125481

Encl. Submitted documents

cc: Mr. Mike Gibson
P.O. Box 60150
Midland, Texas 79711
(w/o enclosures)



1. Because we resolve your request under section 552.103, we need not address the applicability of the other exception that you raised, section 552.101 of the Government Code.

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