|Office of the Attorney General - State of Texas
July 24, 2000
Ms. Julie Joe
Dear Ms. Cary:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137283.
The Office of the Attorney General (the "Attorney General") received a request for a copy of the entire file ID# 136553 and all 'information' wherever and in whatever form or medium relating to or concerning everything you, Taylor, Eads, Ervin, Payne, Greytock [sic], Burns, Cary or Ballard have done or said regarding this requestor, his requests, the subjects and the subject matters of the requests, on which any of them or you did not fully copy us; you may withhold only that which is an exact duplicate of what we have indisputably received already.
As your request for a decision from this office only concerns the second request item, we assume that you intend to release the first request item to the requestor. In regard to the second request item, you claim that the responsive information is excepted from disclosure under sections 552.101, 552.103, 552.107, and 552.111 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information.
Section 552.103(a) excepts from disclosure information:
(a) ... relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.
(b) For purposes of this section, the state or a political subdivision is considered to be a party to litigation of a criminal nature until the applicable statute of limitations has expired or until the defendant has exhausted all appellate and postconviction remedies in state and federal court.
(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.
A 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 at the time of the request, 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, 481 (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). A governmental body must meet both prongs of this test for information to be excepted under 552.103(a).
You explain that the Attorney General reasonably anticipates litigation because the requestor has drafted a petition naming John Cornyn as a defendant, and that he has delivered the draft petition specifically to the First Assistant Attorney General. The draft petition, which you have submitted for our review, alleges numerous violations of the Public Information Act ("PIA") by the Attorney General, including instances of failing to act on behalf of the requestor. Furthermore, the petition seeks mandamus relief as well as the awarding of costs, and all other relief available. While the requestor does not appear to be represented by counsel,(2) you indicate that the requestor has proceeded to litigation pro se on at least one other occasion. Finally, you explain that the requestor has made many prior complaints of non-compliance to the internal Attorney General Open Records Hotline and enforcement staff. Due to all of these facts, you submit that the requestor's "lawsuit is more than just threatened; it was drafted and delivered to the Texas Attorney General." We find that you have demonstrated anticipated litigation in this case. Texas Legal Found., 958 S.W.2d at 481.
With regard to whether the submitted information is related to the anticipated litigation, you state that the requestor "centers his causes of action around his PIA requests and PIA complaints to the [Attorney General] which, in [the requestor's] opinion, the [Attorney General] failed to investigate." The draft petition states as much in items 7 - 9 and 146 - 147. After reviewing the submitted information, we believe that it is related to the anticipated litigation. Texas Legal Found., 958 S.W.2d at 483 ("Ordinarily, the words 'related to' mean 'pertaining to,' 'associated with' or 'connected with.'"). Therefore, the Attorney General may withhold the submitted information under section 552.103.
Generally, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and must be disclosed. 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).(3)
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.
E. Joanna Fitzgerald
Ref: ID# 137283
Encl Submitted documents
cc: Stephen Lisson
1. The responsive information at issue consists of a series of electronic correspondence among officials of the Office of the Attorney General.
2. The requestor signed the petition in his pro se capacity.
3. Because we make a determination under section 552.103, we need not address your additional arguments against disclosure at this time.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US