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January 7, 2000

Mr. Paul A. Fleck
Martin, Drought & Torres
Nations Bank Plaza 25th Floor
300 Convent Street
San Antonio, Texas 78205-3789

OR2000-82

Dear Mr. Peck:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131052.

The City of Shavano Park (the "city") received a request for 30 itemized types of information involving three lawsuits. You state that the city only possesses information responsive to items 16, 26, 27, and 30:

16. All documents and tangible things relating to any meetings or communications between you [the city] and Worth relating to the subject matter of this Lawsuit [Vulcan Materials Co. v. The Rogers Shavano Ranch, et al, Cause No. 99-Cl-03112].

26. Any and all documents and tangible things evidencing any assistance (financial, strategic or otherwise), that Worth has provided to the City of Shavano Park in connection with the Frenchmeyer Lawsuit.

27. Any and all documents and tangible things exchanged between you [the city] and Worth relating to the subject matter of this Lawsuit.

30. All documents and tangible things in your [the city's] possession relating to any of the following: Huebner Road Property; Huebner Road Quarry; Military Road Tract; MH; RSR; Martin Marietta; Beckmann Quarry; Schoenfeld Tract; Rogers 95 acre Tract; McDonough Tract; and/or San Pedro Quarry.

You claim that the requested information is excepted from disclosure under sections 552.103 and 552.110 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1)

Section 552.103 of the Government Code excepts from disclosure information that relates to pending or reasonably anticipated litigation to which the governmental body is or may be a party. Section 552.103(a) was intended to prevent the use of the Public Information Act as a method of avoiding the rules of discovery in litigation. Attorney General Opinion JM-1048 at 4 (1989). The litigation exception enables a governmental body to protect its position in litigation by requiring information related to the litigation to be obtained through discovery. Open Records Decision No. 551 at 3 (1990). To secure the protection of section 552.103(a), the city must demonstrate that (1) litigation is pending or reasonably anticipated and (2) the information at issue is related to that litigation. 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 this instance you have made the requisite showing that litigation by or against the city is pending or reasonably anticipated. We must now examine whether the requested information relates to that litigation for purposes of section 552.103(a).

We note that no section 552.103(a) interest exists with respect to information that has been obtained by all parties to the litigation, e.g., through discovery or otherwise. Open Records Decision Nos. 349 (1982), 320 (1982). If the opposing parties in the litigation have seen or had access to any of the information in these records, there is no justification for now withholding that information from the requestor pursuant to section 552.103(a). In addition, a governmental body that releases nonconfidential information to a member of the public must release the information to all members of the public who request it. See Open Records Decision No. 400 (1983) (construing statutory predecessor to Government Code section 552.111). We also refer you to section 552.022(a)(17) of the Government Code, which provides that information contained in a public court record is public information. We have marked portions of the information to which the opposing parties have apparently had access, including, but not limited to, the pleadings in the three suits, documents signed by representatives of the requestor, and documents previously released to opposing counsel. That information must be released.

Included in the submitted information are many newspaper articles, newsletters, and other publications. We note that newspaper clippings, whether or not they relate to the anticipated litigation, constitute information that is within the public domain and, as such, cannot be withheld under section 552.103. Those pages must be released. Several documents submitted appear to be adopted ordinances and resolutions of the city and agenda and minutes of open city council meetings. Those items must be released. See Gov't Code 551.022.

Finally, we address your claim that section 552.110 protects from disclosure the photocopies of checks representing contributions to the city's legal defense fund. Section 552.110(b) excepts from disclosure "[c]ommercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained." You have made no such demonstration of competitive harm, nor are we able to surmise how release of the photocopies would produce competitive harm, so the checks may not be withheld under section 552.110. As we are unable to relate photocopies of contribution checks to the subject matter of the litigation, and as "information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body" is specifically made public by section 552.022(a)(3) of the Government Code, that information must be released. However, we agree that the personal bank account numbers are protected from public disclosure under the common-law right to privacy. See Open Records Decision No. 600 (1992). The account numbers must be redacted. The remaining information may be withheld from required public disclosure. We note that 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).

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.

Sincerely,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/jc

Ref: ID# 131052

Encl. Submitted documents

cc: Mr. James K. Spivey
Cox & Smith
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205-1521
(w/o enclosures)


 

Footnotes

1. In reaching our conclusion here, we assume that the submitted information contains all of the information in the possession of the city responsive to the request. If the information submitted consists of "representative samples" of requested records, we assume that the sample submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). We note that you submitted information for our review identified as responsive to request no. 16, but not request no. 27, unless you treated request no. 16 as encompassing request no. 27. 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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