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December 2, 1999

Ms. Joanne Wright
Associate General Counsel
Texas Department of Transportation
Dewitt C. Greer State Highway Building
125 East 11th Street
Austin, Texas 78701-2483

OR99-3460

Dear Ms. Wright:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 130367.

The Texas Department of Transportation (the "department") received a request for "information regarding final, accepted offers for other parcels of land involved in" a particular highway expansion project. You have submitted to this office as responsive to the request several "Final Offer Letters," which you contend are excepted from disclosure pursuant to sections 552.103 and 552.105 of the Government Code. You explain:

The enclosed letters . . . are Final Offer Letters that reflect the State's final offered price for the property. If a property owner accepts this final offer, the property is purchased for that price. If the offer is rejected or no response is received by the deadline, the file is automatically forwarded to the Attorney General's office so that the property can be acquired by eminent domain. . . . Several property owners have accepted their respective offers for their property, but we have yet to close on those parcels. It is these Final Offer Letters that we seek to withhold from disclosure.

We note at the outset that section 552.022(a) of the Government Code provides in pertinent part:

Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

. . . .

(3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body.

The requestor has not limited his request to the "Final Offer Letters" you submitted to this office. Thus, to the extent that the requested information is also contained in any "account, voucher, or contract," that information is not excepted from required public disclosure and must be released to the requestor. In such event, this office can discern no rationale for withholding the same information contained in the "Final Offer Letters."

On the other hand, assuming the requested information is not otherwise made public under section 522.022(a)(3), we will address whether the requested information is excepted from required public disclosure. To secure the protection of section 552.103, a governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Open Records Decision No. 588 at 1 (1991).

You explain that the requestor has refused to accept the department's final offer for the purchase of his property and that the department has referred the requestor's file to the Office of the Attorney General for condemnation proceedings. You explain that the amount the state should pay for the requestor's parcel of land will be at issue in the condemnation proceedings, and that the state's valuation of other parcels in the same area would be useful at trial for comparison purposes. We conclude that you have demonstrated that litigation in this matter is reasonably anticipated and that the requested information relates to that litigation for purposes of section 552.103. Accordingly, the department may withhold the requested information pursuant to section 552.103, except as discussed above.(1)

In reaching this conclusion, however, we assume that the opposing party in the litigation has not had prior 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 been 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.

Sincerely,

William M. Walker
Assistant Attorney General
Open Records Division

WMW/RWP/ljp

Ref: ID# 130367

Encl. Submitted documents

cc: Mr. Michael E. Blackmon
2739 South Robinson Drive
Waco, Texas 76706
(w/o enclosures)


 

Footnotes

1. Because we resolve your request under section 552.103, we need not address the applicability of section 552.105. In reaching our conclusion here, 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 No. 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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