|Office of the Attorney General - State of Texas
September 1, 1999
Mr. Dennis P. Duffy
Dear Mr. Duffy:
You have asked whether certain information is subject to required public disclosure under the Texas Public Information Act, chapter 552 of the Government Code. Your requests were assigned ID# 127083 and ID# 127242.
The University of Houston (the "university") received two requests for various documents pertaining to its pharmacists who work at the Texas Department of Criminal Justice. You contend that the requested documents are excepted from disclosure under sections 552.101 and 552.103 of the Government Code. We have considered the exceptions you claim and have reviewed a representative sample of the documents at issue.(1)
To show that section 552.103(a) is applicable, a governmental entity must show that (1) litigation is pending or reasonably anticipated ,and (2) the information at issue is related to the litigation. University of Texas 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). The governmental entity must meet both prongs of this test for information to be excepted under section 552.103(a).
You have shown that litigation is pending and that the requested documents are related to that pending litigation. We agree that you may withhold the documents at issue from disclosure pursuant to section 552.103. In reaching this conclusion, however, we assume that the opposing party in the litigation has not previously had access to the records at issue; absent special circumstances, once information has been obtained by all parties to the litigation, e.g., through discovery or otherwise, no section 552.103 interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). We also note that the applicability of section 552.103 ends once the litigation has concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).
Because we are able to resolve this matter under section 552.103, we do not address your section 552.101 claim at this time. 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.
Karen E. Hattaway
Ref: ID# 127083 and 127242
Encl. Submitted documents
cc: Ms. Lisa Tilton-McCarthy
1. 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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