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April 3, 2000

Mr. Alan J. Bojorquez
Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P.
1700 Frost Bank Plaza
816 Congress Avenue
Austin, Texas 78701-2443

OR2000-1275

Dear Mr. Bojorquez:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133831.

The City of Georgetown (the "city") received a request for evaluations, self-evaluations and responses to the evaluations regarding City Manager Bob Hart. You state that the city has provided the requested evaluations and related materials to the requestor. However, you seek to withhold from disclosure a document entitled, "Structural Assessment of Aeration Basin/Clarifier and Sludge Holding Tank Walls, Dove Springs Wastewater Treatment Facility"(the "Assessment") which was attached to Mr. Hart's 1999 Self Appraisal. You claim that the Assessment is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

You contend that the city is involved in litigation regarding the Dove Springs Wastewater Treatment Facility. The case is styled Ethel Domel and Norman Domel v. City of Georgetown, Texas, Cause No. 99-1297 and is currently pending before the Texas Supreme court. You inform us that the city filed its brief in this case on January 20, 2000. You also inform us that, a companion case, styled Mary Raum and Albert Raum v. City of Georgetown, Texas, Cause No. 94-021-C26, is awaiting trial pending the outcome of the above-cited case. In addition, you have submitted a copy of a letter addressed to the City Attorney from the city's litigation counsel requesting that the city withhold from disclosure any documents or information relating to the Dove Springs Wastewater Treatment Facility until resolution of the Domel lawsuit.

Section 552.103(a) of the Government Code as amended by the Seventy-sixth Legislature provides that:

(a) Information is excepted from the requirements of Section 552.021 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.

The city, therefore, has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in this 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, 481 (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). We conclude that you have made the requisite showing that litigation is reasonably anticipated and that the requested information relates to the anticipated litigation for purposes of section 552.103(a). Therefore, the city may withhold the requested information under section 552.103.

Generally, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, 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).

We note, however, that a completed report is expressly made public by section 552.022(a)(1) of the Government Code and is not excepted from required disclosure unless it is expressly made confidential by other law. Gov't Code 552.002(a)(1). Section 552.103 is a discretionary exception and does not make information confidential. The Assessment appears to be a completed report and, as such, must be released.

In summary, if the requested information is a completed report, it must be released pursuant to section 552.022(a)(1). Otherwise, section 552.103 permits you to withhold the information.

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,

Rose-Michel Munguía
Assistant Attorney General
Open Records Division

RMM/ch

Ref: ID# 133831

Encl. Submitted documents

cc: Mr. Meave L. Reston
Austin American -Statesman
203 East Main
Round Rock, Texas 78664
(w/o enclosures)


 

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