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August 24, 2000

Ms. Anita Stevenson
Assistant City Attorney Division Chief
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546

OR2000-3248

Dear Ms. Stevenson:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137963.

The Austin Fire Department (the "department") received a written request for certain information pertaining to the hiring process used by the department to place cadets in Class 105 of its training academy.(1) Specifically, the requestor seeks the following information:

My entire application file along with any and all of my results from any portion of this hiring process. This should include all tests and results from the date of my application.

A list of all questions asked to each candidate in the oral interview process.

Any and all documents concerning the most recent meet and confer process including but not limited to documents prepared and used in the process, the resulting contract, and any documents on pending or completed grievance or arbitration.

You state that you do not "seek a determination regarding [the] request for labor negotiation information about contract provisions other than the hiring process" or regarding the request for "information relating to completed grievance arbitration proceedings."(2) You contend that the remaining requested information is excepted from disclosure under section 552.103 of the Government Code. You have submitted to this office as responsive to the request the requestor's application file, records relating to a pending grievance, and documents prepared in connection with the referenced "meet and confer process."

To secure the protection of section 552.103(a), a governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation to which the governmental body is a party. Open Records Decision No. 588 (1991). Additionally, the governmental body must demonstrate that the litigation was pending or reasonably anticipated as of the day it received the records request. Gov't Code 552.103(c). In this instance, you have demonstrated that the requested information "relates" to both pending and reasonably anticipated litigation against the City of Austin in connection with the department's hiring practices. We conclude, therefore, that the department may withhold at this time the information you have submitted to this office as responsive to the request pursuant to section 552.103 of the Government Code.(3)

We note, however, that you did not submit to this office any of the requested tests or other questions asked of the applicants during the oral interview process. Assuming the department actually holds such records, they are now presumed to be public and must be released to the requestor. See Gov't Code 552.301(e)(1)(D), .302.

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/RWP/ljp

Ref: ID# 137963

Encl. Submitted documents

cc: Ms. Kim A. Phillips
7109 North Ute Trail
Austin, Texas 78729
(w/o enclosures)


 

Footnotes

1. The requestor disputes your contention that you timely sought a decision from this office in connection with this matter. This office cannot resolve factual disputes in the opinion process. Because you have represented to this office that the City of Austin first received the current records request on May 25, 2000, we will assume that your decision request was timely for purposes of this ruling. But see Gov't Code 552.302 (where decision request is not timely made in accordance with section 552.301(b), presumption arises that requested information is public).

2. Because you do not seek a decision regarding these categories of information, we assume the department has released this information to the requestor. If it has not, it must do so at this time. See Gov't Code 552.302.

3. In reaching this conclusion, we assume that the opposing parties to the pending and anticipated litigation have not previously had access to the records at issue; absent special circumstances, once information has been obtained by all parties to the litigation, e.g., through discovery or otherwise, no section 552.103 interest exists with respect to that information. Open Records Decision Nos. 349, 320 (1982). We also note that the applicability of section 552.103 ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).
 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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