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John Cornyn

May 9, 2000

Ms. Sarajane Milligan
Assistant County Attorney
County of Harris
1019 Congress, 15th Floor
Houston, Texas 77002-1700


Dear Ms. Milligan:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134935.

Harris County (the "county") received a request for the class rosters for three courses offered by the Sheriff's Academy during particular years, and "a copy of General Order #21 of the old Policy and Ethics Manual[.]" You state that the county has provided a copy of General Order #21 to the requestor. You claim, however, that the remaining information is excepted from disclosure under sections 552.103 and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.103(a), the "litigation exception," 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. 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). The city must meet both prongs of this test for information to be excepted under section 552.103(a).

The mere chance of litigation will not trigger section 552.103(a). Open Records Decision No. 452 at 4 (1986). 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. Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986).

You inform us that the county Sheriff's Department received a copy of Commissioner's Charge number 330-94-2148 from the Equal Employment Opportunity Commission ("EEOC"), and a corresponding Determination stating that the EEOC had found violations. You state that conciliation efforts between the Sheriff's Department and the EEOC were unsuccessful, and the EEOC has forwarded the matter "to the Department of Justice regarding litigation." You have provided a copy of the Commissioner's Charge and the Determination for our review. This office has stated that a pending EEOC complaint indicates litigation is reasonably anticipated. Open Records Decision Nos. 386 at 2 (1983), 336 at 1 (1982). Moreover, you inform this office that a lawsuit against the county based on claims of discrimination in the workplace, Phillips v. Harris County (Cause # 98-CV-3883), is already pending in both state and federal court. You have provided copies of the plaintiff's complaints for our review. Therefore, based on your arguments and the information before us, we conclude that you have shown that litigation is both reasonably anticipated and pending for purposes of section 552.103.

You also argue that the documents requested relate to both the EEOC claim and the pending litigation. You explain that the requested documents indicate those officers who have taken the courses necessary to maintain their commission and be eligible for promotion or hiring by the Sheriff's Department. You have not explained, however, how the requested documents relate to the EEOC complaint or the pending lawsuit. See Open Records Decision Nos. 638 (1996) (governmental body must explain how the requested information relates to the subject of the litigation), 551 (1990) (governmental body must reasonably establish the relatedness of the subject matter of the requested information to the litigation). Since you have not met your burden under the "relatedness" prong of section 552.103, we conclude that the submitted information may not be withheld under that exception.

Section 552.117(2) of the Government Code provides for the confidentiality of current and former peace officers' home addresses, home telephone numbers, social security numbers, and family member information. In this instance, we find that the submitted documents contain peace officers' social security numbers that the county must withhold pursuant to section 552.117(2). The remaining submitted information must be released to the requestor.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.


Kathryn S. Knechtel
Assistant Attorney General
Open Records Division


Ref: ID# 134935

Encl. Submitted documents

cc: Mr. Godfrey T. Eta
2106 Laurel Oaks Drive
Houston, Texas 77014-3604
(w/o enclosures)


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