|Office of the Attorney General - State of Texas
August 9, 1999
Mr. Vernon Arrell
Dear Commissioner Arrell:
You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 126680.
The Texas Rehabilitation Commission (the "commission") received an open records request from a former commission employee for "the entire documentation regarding the Special Caseload Review - Project 99-104, March, 1999." You state that the commission has released to the requestor a copy of the final audit report prepared by the commission's Management Audit Division. You seek to withhold all supporting documentation to the audit pursuant to sections 552.103 and 552.116(1) of the Government Code.
To secure the protection of section 552.103 of the Government Code, a governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation to which the governmental body is a party. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Open Records Decision No. 588 at 1 (1991). In this instance you have not made the requisite showing that the requested information relates to reasonably anticipated litigation for purposes of section 552.103. The requested records may not be withheld pursuant to this exception.
You next contend that the supporting documentation may be withheld under section 552.116. You state that the commission follows statutory requirements and complies with the professional auditing standards established by the profession. Section 552.116 of the Government Code excepts from disclosure
an audit working paper or draft audit report of the state auditor or of another state agency or institution of higher education as defined by Section 61.003, Education Code.
The legislation enacting section 552.116 also defines the term "audit working paper" as
all documentary and other information prepared or maintained in conducting an audit or investigation, including all intra-agency and interagency communications relating to an audit or investigation and all draft reports or portions thereof.
Act of May 29, 1997, 75th Leg., R.S., ch. 1122, § 2, 1997 Tex. Gen. Laws 4266, 4267 (amending Gov't Code 321.001). Section 321.0136 of the Government Code defines "investigation" for purposes of chapter 321 as
an inquiry into specified acts or allegations of impropriety, malfeasance, or nonfeasance in the obligation, expenditure, receipt, or use of state funds, or into specified financial transactions or practices that may involve such impropriety, malfeasance, or nonfeasance.
Gov't Code § 321.0136.
You have submitted to this office as representative of the information at issue the "Table of Contents" for Project 1999-104. The requested information deals primarily with the personnel matters of the commission. We do not believe that the information constitutes "audit working paper[s]" as contemplated in Government Code section 552.116 or section 321.001. See Gov't Code §§ 321.0131-.016 (defining state audits and investigations); Open Records Decision No. 580 at 9-10 (1990). Accordingly, the commission may not withhold the requested information based on section 552.116 of the Government Code.
Because you have not raised an applicable exception to disclosure, the commission 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 questions about this ruling, please contact our office.
Ruth H. Soucy
1. Although your brief to this office actually cites section 552.117, we assume, based on your arguments to this office, that you intended to raise section 552.116.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US