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March 23, 2000

Ms. Susan Combs
Commissioner
Texas Department of Agriculture
P.O. Box 12847
Austin, Texas 78711

OR2000-1139

Dear Ms. Combs:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133311.

The Texas Department of Agriculture (the "department") received a request for the "investigation and findings" in regard to a particular complaint. You have assigned your internal tracking number TDA OR-00-0031 to this request. You assert that "some of the requested information," which you have provided for our review as exhibit "B," is excepted from disclosure under sections 552.101, 552.103, and 552.107 of the Government Code. You state that you will release to the requestor the remaining responsive information. We have considered the exceptions you claim and have reviewed the submitted information.

To show that section 552.103, the "litigation exception," is applicable, the department must demonstrate that (1) litigation was pending or reasonably anticipated at the time of the request and (2) the information at issue is related to that litigation. See Gov't Code 552.103(a), (c); See also 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). Contested cases conducted under the Administrative Procedure Act, chapter 2001 of the Government Code, are considered litigation under section 552.103. Open Records Decision No. 588 at 7 (1991). Section 552.103 requires concrete evidence that litigation may ensue. To demonstrate that litigation is reasonably anticipated, the department must furnish evidence that litigation is realistically contemplated and is more than mere conjecture. Open Records Decision No. 518 at 5 (1989). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986).

You explain that the department is authorized to investigate pesticide-related complaints and may assess penalties for violations of chapters 75 and 76 of the Agriculture Code. Agric. Code 12.020, 76.1555(a). You further explain that proceedings conducted after assessment of a department penalty are subject to the Administrative Procedure Act. Id. at 76.1555(h). You have supplied this office with information indicating that an investigation was pending in this case at the time of the request, and you advise the department received the request on January 6, 2000. As of January 21, 2000, you represent to this office that "a final decision regarding possible administrative action has not been made by the attorney handling the case." Based on this representation, your arguments, and our review of the submitted information, we thus conclude that you have shown that litigation was reasonably anticipated for purposes of section 552.103 at the time of the request. See Gov't Code 552.103(c). Our review of exhibit "B" also indicates that the information relates to the anticipated litigation. We therefore conclude you may withhold the requested information under section 552.103 of the Government Code.

We note that once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103 interest exists with respect to that information and such information must be disclosed. Open Records Decision Nos. 349 (1982), 320 (1982). In addition, the applicability of section 552.103(a) ends once the litigation concludes. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Because we make a determination under section 552.103, we do not address your section 552.101 and 552.107 assertions.(1)

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,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/ch

Ref: ID# 133311

Encl. Submitted documents

cc: Mr. Cecil L. Welch
Route 1, Box 419J
Wharton, Texas 77488
(w/o enclosures)


 

Footnotes

1. We note, however, that you assert the information "should be excepted from disclosure under Sections 552.101 and 552.107 of the act as attorney work product." We advise that the attorney work product privilege is properly asserted in the context of the Public Information Act under sections 552.103 and 552.111 when the litigation is anticipated or pending, and only under section 552.111 when the litigation has concluded. See Open Records Decision No. 647 (1996).
 

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