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March 1, 2000

Ms. Bonnie Lee Goldstein
Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P.
3000 Bank One Center
1717 Main Street
Dallas, Texas 75201-4335

OR2000-0787

Dear Ms. Goldstein:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID # 132589.

The Town of Flower Mound (the "town"), which you represent, received a request for various information relating to the Brandywine subdivision of the town. You have submitted representative samples of the responsive information for our review.(1) You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and have reviewed the information you submitted.

As amended by the Seventy-sixth Legislature, section 552.103 of the Government Code, the "litigation exception," provides in relevant part:

(a) Information is excepted from [required public disclosure] if it is information 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.

. . . .

(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.

Gov't Code 552.103. The governmental body has the burden of providing relevant facts and documents sufficient to demonstrate that section 552.103 is applicable to the information in question. To sustain this burden, the governmental body must demonstrate: (1) that litigation is pending or reasonably anticipated and (2) that the information in question is related to that litigation. See University of Tex. 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 (Tex. App. - Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990).

In support of the town's claim under section 552.103, you assert that the requested information is related to proceedings in which the town has filed misdemeanor criminal charges and assessed penalties against two developers for violation of its tree preservation ordinance. You state that the requestor and the law firm with which he is associated represent the developers. You inform us that the criminal charges remain pending and that the assessments of penalties have been appealed. Thus, you have satisfied the first prong of the test under section 552.103. With regard to the other element of the test, however, we are not persuaded that you have satisfactorily established that the requested information is related to the pending litigation. You do not inform this office that the pending proceedings have any direct connection with the Brandywine subdivision. You have not provided this office with any pleading or other document, relating to either the criminal cases or the penalty proceedings, which reflects that information relating to the Brandywine subdivision either has been, is, or may become relevant to the issues in the pending cases.(2) Your claim under section 552.103 appears to be based entirely on the potential implications of a statement by one of the defendant developers that the town allegedly treated the Brandywine subdivision differently than the development(s) to which the pending cases relate. In the absence of a demonstration of any other potential connection between information relating to the Brandywine subdivision and the pending cases, we do not believe that the possibility that the Brandywine subdivision may become an issue in those cases is sufficient to sustain your claim under section 552.103 of the Government Code. We therefore conclude that the information at issue is not excepted from disclosure under section 552.103. Accordingly, it must be released. See Open Records Decision Nos. 638 (1996) (governmental body must establish how and why section 552.103 is applicable to particular records); 551 (1990) (governmental body must establish that requested information is reasonably related to subject matter of pending or anticipated litigation); 323 (1982) (information for which exception is claimed must be clearly relevant to pending litigation); 222 (1979) (predecessor statute not applicable in absence of showing of direct relationship between information sought and pending or contemplated litigation).

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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ch

Ref: ID# 132589

Encl. Submitted documents

cc: Mr. Arthur J. Anderson
Winstead, Sechrest & Minick
1201 Elm Street, Suite 5400
Dallas, Texas 75270-2199
(w/o enclosures)


 

Footnotes

1. We assume that the representative samples of information that you submitted to this office are truly representative of the requested information as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This letter ruling does not address any requested information that is substantially different from the submitted information.

2. We note that you did submit pleadings and correspondence relating to the pending criminal cases. You did not submit any documents relating to the administrative proceedings.
 

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