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November 20, 2000

Mr. Steven D. Monté
Assistant City Attorney
City of Dallas
2014 Main Street, Room #501
Dallas, Texas 75201

OR2000-4456

Dear Mr. Monté:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 141530.

The City of Dallas Police Department (the "department") received a request for "any and all incident reports, documents, memos, writings, notes, recordings, emails and any other documentation" of a March 9, 2000 incident at a specified address. The request also seeks the names and photographs of "all officers who were present at the scene." You have submitted for our review information that is responsive to the request. You assert that the requested information is excepted from disclosure under sections 552.103 and 552.119 of the Government Code. The requestor has also submitted comments to this office. See Gov't Code 552.304. We have considered the exceptions you claim, the submitted comments, and reviewed the submitted information.

We note at the outset that the submitted information includes a "Search and Arrest Warrant" which incorporates by reference a search warrant affidavit. The affidavit was made to support a search warrant. Therefore, the affidavit is public by statute if the warrant has been executed. See Code Crim. Proc. art. 18.01(b). Furthermore, these documents were signed by a magistrate and appear to be court records. See Gov't Code 552.022(a)(17); see also Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 (Tex. 1992) (information also contained in public court record not excepted from disclosure). The affidavit must be released, as well as the warrant if that document was filed with a court.

We further note that the requestor alleges the department did not timely seek a decision from this office as required by section 552.301 of the Government Code with respect to his request dated September 5, 2000. See Gov't Code 552.301(b) (governmental body must request attorney general decision and state the exceptions that apply not later than the 10th business day after the date of receiving the written request). We rely on the department's representation that the request was received on September 11, 2000. Based on this representation, and because the department's request for a decision was dated and received by this office on September 20, 2000, we conclude that the department timely complied with section 552.301(b).

Section 552.103 of the Government Code, the "litigation exception," excepts from disclosure 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.

[Information is excepted from disclosure] 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.

Gov't Code 552.103(a), (c). Section 552.103 was intended to prevent the use of the Act as a method of avoiding the rules of discovery in litigation. Attorney General Opinion JM-1048 at 4 (1989). The litigation exception enables a governmental body to protect its position in litigation by requiring information related to the litigation to be obtained through discovery. Open Records Decision No. 551 at 3 (1990). To show that 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). You assert that litigation was reasonably anticipated at the time of the request. To demonstrate that litigation is reasonably anticipated, the department must furnish evidence that, at the time of the request, litigation was realistically contemplated and was more than mere conjecture. Gov't Code 552.103(c); 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). This office has found that where a governmental body receives a demand letter from an attorney which threatens suit, litigation may be reasonably anticipated for purposes of section 552.103. Open Records Decision No. 346 at 2 (1982).

As to the first prong of the above-stated test, you call our attention to the request letter, which we note is from an attorney, makes demands, and specifically threatens suit. We believe the department has demonstrated in this instance that litigation was reasonably anticipated at the time the department received the request. As to the second prong of the above-stated test, upon review of the submitted information, we also agree that the requested information relates to the anticipated litigation. Except as otherwise noted herein, the department may therefore withhold the requested information pursuant to section 552.103 of the Act.

Absent special circumstances, once information has been obtained by all parties to the litigation, e.g., 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, to the extent the opposing party in the anticipated litigation has seen or had access to any of the information responsive to the request, there is no justification for withholding that information from the requestor pursuant to section 552.103. We also note that the applicability of section 552.103 ends once the litigation concludes. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Because we are able to resolve the matter under section 552.103, we do not address the section 552.119 assertion.

In summary, any documents filed with a court and any affidavits to support a search warrant that contain information responsive to the request, if executed, must be released to the requestor. As to the remaining responsive information and except as otherwise noted herein, the department may withhold the information under section 552.103 of the Government Code.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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/seg

Ref: ID# 141530

Encl. Submitted documents

cc: Mr. Eric Jensen
Attorney at Law
6614 South Broadway Avenue
Tyler, Texas 75703
(w/o enclosures)


 

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