|Office of the Attorney General - State of Texas
June 30, 1999
Mr. John Steiner
Dear Mr. Steiner:
You have asked whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 125358.
The City of Austin (the "city") received two requests for information concerning an investigation into certain allegations. You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. 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).
In Open Records Decision No. 452 at 4 (1986), this office stated:
Litigation cannot be regarded as "reasonably anticipated" unless there is more than a "mere chance" of it -- unless, in other words, we have concrete evidence showing that the claim that litigation may ensue is more than mere conjecture. Whether litigation is reasonably anticipated must be determined on a case-by-case basis. [Citations omitted.]
Litigation has been found to be reasonably anticipated when an individual has hired an attorney who demands damages and threatens to sue the governmental entity. Open Records Decision No. 551 at 2 (1990). This office has found that litigation was not reasonably anticipated when an applicant who was rejected for employment hired an attorney, and the attorney as part of his investigation asked for information as to why his client was rejected. Open Records Decision No. 361 (1983). In this situation, you state that an employee has been terminated and that former employee has taken steps toward litigation by alleging that the city has subjected him to harassment, discrimination, intimidation, and slander; by hiring an attorney; and by filing a grievance which you indicate is an administrative procedure preliminary to filing a lawsuit. We agree that you have shown that litigation is reasonably anticipated in this situation.
You may generally withhold the documents for which you assert the section 552.103(a) exception. However, information that has been seen or created by the opposing party in the anticipated litigation may not be withheld from disclosure. Once information has been obtained by all parties to the litigation, no section 552.103(a) interest generally exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Also, the applicability of section 552.103(a) ends once the litigation has concluded. Attorney General Opinion MW-575 (1982), Open Records Decision No. 350 (1982).
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
Ref: ID# 125358
Encl. Submitted documents
cc: Ms. Karen Baker
Ms. Renee Brady
Mr. Mick Osborne
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US