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March 22, 2000

Mr. John M. Hill
Cowles & Thompson
901 Main Street, Suite 4000
Dallas, Texas 75202-3793

OR2000-1138

Dear Mr. Hill:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133192.

The City of Lakewood Village (the "city") received two requests for information related to a prior lawsuit involving a specific residential property. You claim that the information responsive to the first request is excepted from disclosure under sections 552.103, 552.107 and 552.111 of the Government Code. Regarding the information you have submitted as responsive to the second request, you assert only section 552.103 as an exception to disclosure. We have considered the exceptions you claim and have reviewed the submitted information.

We initially note that certain information you have submitted is public under section 552.022 of the Government Code unless the information is expressly made confidential under other law. Gov't Code 552.022. You have submitted certain documents which appear to be documents that are filed with a court. Documents filed with a court are generally considered public and must be released. Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 (Tex. 1992); Gov't Code 552.022(a)(17). You have additionally submitted a signed settlement agreement. Section 552.022(a)(18) makes public such agreements to which a governmental body is a party. You assert that sections 552.103, 552.107, and 552.111 except the submitted information from disclosure. Our office has previously concluded that sections 552.103, 552.107, and 552.111 are discretionary exceptions. See Open Records Decision No. 630 (1994) (section 552.107 is a discretionary exception), 551 (1990) (statutory predecessor to section 552.103 serves only to protect a governmental body's position in litigation, and does not itself make information confidential), 470 (1987) (statutory predecessor to section 552.111 is a discretionary exception). We do not believe that these exceptions "expressly [make] information confidential under other law." Gov't Code 552.022. Therefore, the information we have marked may not be withheld under any of the claimed exceptions and must be released to the requestor. We will now address your claimed exceptions with regard to the remaining submitted information.

You assert that the submitted information is excepted in part pursuant to section 552.111 of the Government Code as attorney work product. A governmental body may withhold attorney work product from disclosure under section 552.111 if it demonstrates that the material was 1) created for trial or in anticipation of civil litigation, and 2) consists of or tends to reveal an attorney's mental processes, conclusions and legal theories. Open Records Decision No. 647 (1996). You explain that the information at issue was created for litigation concerning a specific piece of property. You state that the case concluded with a settlement agreement. You have demonstrated in this case that the documents at issue were created for litigation. Thus, you have established the applicability of the first prong of the work product test.

The second prong of the work product test requires the governmental body to show that the documents at issue tend to reveal the attorney's mental processes, conclusions and legal theories. Having reviewed your arguments and the submitted information, we agree that portions of the information consist of or tend to reveal an attorney's mental processes, conclusions and legal theories. Accordingly, we have marked the information which may be withheld as attorney work product pursuant to section 552.111 of the Government Code.

You additionally claim that section 552.107 of the Government Code excepts from disclosure portions of the remaining submitted information. Section 552.107(1) excepts information that an attorney cannot disclose because of a duty to his client. In Open Records Decision No. 574 (1990), this office concluded that section 552.107 excepts from public disclosure only "privileged information," that is, information that reflects either confidential communications from the client to the attorney or the attorney's legal advice or opinions; it does not apply to all client information held by a governmental body's attorney. Id. at 5. When communications from attorney to client do not reveal the client's communications to the attorney, section 552.107 protects them only to the extent that such communications reveal the attorney's legal opinion or advice. Id. at 3. In addition, basically factual communications from attorney to client, or between attorneys representing the client, are not protected. Id. After careful review, we conclude that the remaining information does not reveal client communications, nor does it reveal the attorney's legal opinion or advice. Accordingly, the remaining information may not be withheld pursuant to section 552.107 of the Government Code.

Finally, you contend that the requested information may be withheld from disclosure under section 552.103 of the Government Code. Section 552.103(a), the "litigation exception," excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. The governmental body has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. 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, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The city must meet both prongs of this test for information to be excepted under section 552.103(a).

The mere chance of litigation will not trigger section 552.103(a). Open Records Decision No. 452 at 4 (1986). To demonstrate that litigation is reasonably anticipated, the governmental body must furnish concrete evidence that litigation involving a specific matter is realistically contemplated and is more than mere conjecture. Id. Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986). Having carefully reviewed your argument and the submitted information, we conclude that you have not demonstrated that litigation is reasonably anticipated. Therefore, you may not withhold, pursuant to section 552.103 of the Government Code, any of the remaining information.

In summary, you must release the information we have marked under section 552.022 of the Government Code. You may withhold the information we have marked as excepted from disclosure under section 552.111. The remaining information must be released to the requestor.

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,

Carla Gay Dickson
Assistant Attorney General
Open Records Division

CGD/ch

Ref: ID# 133192

Encl. Marked documents

cc: Mr. Kirk McCraw
840 Highridge Drive
Lakewood Village, Texas 75068
(w/o enclosures)


 

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