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May 11, 2000

Ms. Sylvia F. Hardman
General Counsel
Texas Rehabilitation Commission
4900 North Lamar Boulevard
Austin, Texas 78751-2399

OR2000-1849

Dear Ms. Hardman:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135785.

The Texas Rehabilitation Commission (the "commission") received a request for 22 categories of information. You claim that the following three categories of requested information are excepted from disclosure under sections 552.101 and 552.103 of the Government Code:

Copies of all correspondence from the requestor, a former employee, to her immediate supervisor from the day the supervision of a named individual was transferred to the Lubbock Supervisory Unit until the present.

Copies of all correspondence from the immediate supervisor to the requestor during the same time.

Copies of all information relating to any financial settlements, reimbursements, or awards to previous commission employees statewide.

Because you have not requested our opinion on the other 19 categories of requested information, we assume that you have released that information. We have considered the exceptions you claim and reviewed the submitted information.(1)

You assert that the first two categories of information you seek to withhold are protected from required public disclosure by section 552.103 of the Government Code. Section 552.103 provides in pertinent part:

(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.

(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.

The commission 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. 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 commission must meet both prongs of this test for information to be excepted under 552.103(a). In this case, the commission has established that litigation is pending and that the documents in Exhibit 3 relate to that litigation.

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).(2)

Thus, information that has either been obtained from or provided to the opposing party in the pending litigation is not excepted from disclosure under section 552.103(a), and must be disclosed. We have identified and labeled several documents which have been furnished to the opposing party.

However, the documents to be released do contain the names of clients which may be protected under section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 111.057 of the Human Resources Code provides that:

(a) Except for purposes directly connected with the administration of health and human service programs and in accordance with regulations, it is unlawful for a person to solicit, disclose, receive, or make use of, or authorize, knowingly permit, participate in, or acquiesce in the use of any list of, names of, or any information directly or indirectly derived from records concerning persons applying for or receiving health and human services.

Hum. Res. Code 111.057(a) (emphasis added). The documents we have marked must be released, with the names of clients redacted. The remaining information in Exhibit 3 may be withheld under section 552.103(a).

We next address the information in Exhibit 4. You state that Exhibit 4 is a representative sample of information responsive to the remaining item of the request, which seeks information relating to settlements with other employees of the commission. You assert that information responsive to that item of the request is protected from disclosure by section 552.101 of the Government Code as confidential by law, yet you do not specify any statutory provision in support of your argument. Further, the 76th Legislature amended section 552.022 of the Government Code to provide several categories of information that are not excepted from required disclosure unless they "are expressly confidential under other law." Settlement agreements to which a government body is a party must be released pursuant to section 552.022(a)(18). This provision refers to final, signed, settlement agreements. The commission must release any final settlement agreements responsive to the request.(3)

As the request seeks "all information relating to any financial settlements, reimbursements, or awards . . . to previous [commission] employees statewide," not just final settlement agreements, you have submitted for our review a draft of a "Confidential Conciliation Agreement" and two related letters, which you claim are excepted from disclosure under the "confidential by law" exception of section 552.101. 42 U.S.C. section 2000e-5(b) provides, in pertinent part:

. . . Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both.

Section 2000e-7 provides:

Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.

This office has previously held that the non-disclosure provisions of section 2000e-5(b) apply only to agents or employees of the Equal Employment Opportunity Commission. Open Records Decision Nos. 245 (1980), 155 (1977), 59 (1974). Nor is the agreement excepted from disclosure on its own terms. Unless a governmental body is explicitly authorized to make an enforceable promise to keep information confidential, it may not make such a promise in a contract or a settlement agreement. See Open Records Decision Nos. 514 at 1 (1988), 114 at 1 (1975). As a result, Exhibit 4 is not excepted from disclosure by section 552.101.

Finally, we note that you ask us to withhold Exhibit 6, which is your detailed argument regarding exceptions from disclosure you claim as to the other documents submitted. As Exhibit 6 was created after the commission received the request for information, and as section 552.301(e) of the Government Code does not require a governmental body to furnish the requestor with this information, you are not required to release Exhibit 6.

In summary, the commission must release the documents we have marked in Exhibit 3 and other similar documents to which the opposing party in the pending litigation has had access, with the names of clients redacted. The commission must release settlement agreements and other documents similar to those in Exhibit 4, because this office has held that the only exception to required disclosure claimed is not applicable. The commission may withhold the remaining information in Exhibit 3 and similar information represented by those samples, to which the opposing party in the pending litigation has not had access. The commission may withhold Exhibit 6.

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/ljp

Ref: ID# 135785

Encl. Submitted documents

cc: Ms. Billie McKinnon
3805 96th Street
Lubbock, Texas 79423
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). Here, we do not address any other requested records to the extent that those records contain substantially different types of information than those submitted to this office.

2. 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). However, if the records contain information that is confidential by law, you must not release such information even at the conclusion of the litigation. Gov't Code 552.101, .352.

3. Section 552.022(b) of the Government Code forbids a Texas court to seal a settlement order.
 

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