|Office of the Attorney General - State of Texas
December 28, 2000
Mr. Scott Gibson
Dear Mr. Gibson
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 142645.
The Texas Board of Architectural Examiners (the "board") received a written request for all records pertaining to a former licensee. You state that most of the requested information held by the board has been released to the requestor. You contend, however, that certain records pertaining to a pending complaint against the individual are excepted from public disclosure pursuant to section 552.103 of the Government Code.(1)
A governmental body has the burden of providing relevant facts and documents to show that section 552.103 is applicable in a particular situation. Under section 552.103(a) and (c), the test for meeting this burden is a showing that (1) litigation involving the governmental body is pending or reasonably anticipated at the time of the records request, and (2) the information at issue is related to that litigation. See 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 section 552.103. "Litigation" within section 552.103 includes a contested case under the Administrative Procedure Act that is before an administrative agency. Open Records Decision No. 588 (1991).
You explain that the individual whose records are at issue is currently the subject of a board investigation that resulted from a formal complaint
that alleged serious violations of the laws and the rules and regulations regarding the practice of landscape architecture in Texas. The Board has gathered significant evidence that the respondent has violated Texas law. As a result, the Board is in the midst of a proceeding to determine the legal rights and privileges of the respondent. As with all disciplinary actions conducted by the agency, the respondent must be provided with an opportunity for an adjudicative hearing. In fact, according to the Board's Rules and Regulations, all investigations that result from formal complaints must be conducted according to the provision of the Administrative Procedure Act. So this disciplinary action has been treated as a contested case since its inception. [Emphasis in original.]
Given your representations, we conclude that you have met your burden of establishing that litigation regarding this matter was reasonably anticipated on the date the board received the current records request. Furthermore, after reviewing the documents at issue, we conclude that the records you seek to withhold "relate" to that litigation for purposes of section 552.103. The board therefore may withhold the documents contained in Exhibit B at this time in their entirety.
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).
Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.
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.
Ref: ID# 142645
Encl. Submitted documents
cc: Mr. D. Davin McGinnis
1. Because we resolve your request under section 552.103, we need not address your arguments regarding the applicability of the informer's privilege as incorporated into section 552.101 of the Government Code.
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