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RECEIVED | FEB 14 2019 OPEN RECORDS DIVISION] KEN PAXTON ATTORNEY GENERAL OF TEXAS February 14, 2019 Justin Gordon Open Records Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 Re: Public Information Request to Nueces County Dear Mr. Gordon: The Office of the Attorney General (“OAG”) has been informed of three open records requests made to Nueces County (the “county”). The OAG objects to the release of the requested information. Specifically, the OAG invokes sections 552.103 and 552.108 of the Government Code, and this brief is submitted to seek a decision as to whether these exceptions to required disclosure apply. See Open Records Decision No. 474 (1987) (need of law enforcement agency to withhold information from disclosure under section 552.108); see also Open Records Letter No. 2017-00378 (2017) (ruling that a govemmental body may withhold information based on the litigation interest of another governmental body). 1. Information Excepted From Required Public Disclosure Under Section 552.108: Certain Law Enforcement Records The OAG asserts the requested information is excepted from required public disclosure under section 552.108(a)(1) of the Government Code because its release would interfere with the detection, investigation, or prosecution of a crime. Section 552,108, the “law enforcement exception,” provides in relevant part as follows: (a) _ Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if, (2) release of the information would interfere with the detection, investigation, or prosecution of crime[.] Gov't Code § 552.108(a)(1). The information at issue pertains to an open criminal investigation by the OAG’s Election Fraud Section. See Elec. Code § 31.006(b) (providing that if referral is made to OAG, referring complaint is not considered public information until OAG has completed investigation or determined investigation is not warranted). Release of the information at this time would interfere with the OAG’s ongoing investigative interests. Therefore, the OAG asserts the requested information may be withheld under section 552.108(a)(1) of the Government Code. Post Office Box 12548, Austin. Texas 78711-2548 + (512) 463-2100 + www.texasattorneygeneral. gov 1. Information Excepted from Required Public Disclosure Under Section 552.103: Pending Litigation Section 552.103(a) states that information is excepted from required public disclosure if it is information: relating to litigation of a civil or criminal nature to which the state of 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. Gov't Code § 552.103(a). ‘The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties to obtain information relating to litigation through discovery procedures. See Open Records Decision No. 551 at 4-5 (1990). ‘The OAG has the burden of providing relevant facts and documents to show that the section 552.103(a) exception s 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. University of Tex. Law Sch. v. Texas Legal Found., 958 8.W.2d 479, 481 (Tex. App.— Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.—Houston [Ist Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4. The OAG must meet both prongs of this test for information to be excepted under section 552.103(a) ‘The OAG is representing the State of Texas, as well as its client agency the Texas Secretary of State, in litigation related to the issues raised in the requests. ‘The first case was filed prior to the county’s receipt of two of the requests. ‘The information at issue relates to the pending litigation and has not been seen or accessed by the opposing parties. Accordingly, the OAG also asserts some of the requested information may be withheld from required public disclosure under section 552.103 of the Government Code. TH. Conclusion The OAG respectfully requests a decision from the Open Records Division regarding the applicability of the argued exceptions as provided by the PIA. Please do not hesitate to contact me at (512) 475-4213 if you have questions or require additional information. Sincerely, Lauren Downey Assistant Attomey General Public Information Coordinator Office of the Attorney General Mr. Thomas Buser-Clancy ACLU Foundation of Texas thuser-clancy@aclutx.org Mr. Tom Whitehurst, Jr. Corpus Christi Caller Times tom.whitehurst@caller.com Mr. Greg Chandler KRIS Communications gchandler@kristv.com Ms. Melissa Vela ‘Nueces County Attomey’s Office melissa. vela@nuecesco.com