Received by Open Records MAR 27 2020 KEN PAXTON Al torts-l cl: ll March 27, 2020 Re: Public Information Request No, R003908 On March is, 2020, the Office oflhe Attorney General (the received a public information request under the Public Information Act (the Chapter 552. Government Code, from- -- A copy ofthe request is attached as Exhibit A. The OAG asserts the requested information is exeepted from required public disclosure under the HA Pursuant to sections 552,301(b) and 552.301(e) ofthe Government Code, the OAG submits this brief to seek a decision as to whether section 552.103 ofthe Government Code applies to the requested information. We have copied-as a recipient of this briefpursuant to sections 552.301(d) and 552.301(eel) ofthe Government Code. A representative sample orthe information at issue is attached as Exhibit B. Information Exceptcd from Required Public Disclosure Under Section 552.103: Anticipated Litigation Section 55110301) of the Government Code states that information is excepted from required public disclosure ifit is information: relating to litigation ofa 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. (jov't Code The purpose of section 55210} is to enable a governmental body to protect its position in litigation by forcing parties to obtain information rclating to litigation through discovery procedures, See Open Records Decision No. 551 at 45 (1990). The OAG 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 litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. afTex. Law Sch. v. Texas Legal Found, 958 479, 481 (Tex, App. Austin 1997, no pet.); Heardv Housltm Post Co, 684 210, 212 (Tex. Appil-louslou [1st l'Mt om iliJX, '\\iDist] 1984, writ ref?d ORD 551 at 4. The OAG must meet both prongs of this test for information to be excepted under section Section 552.103 requires concrete evidence that litigation may ensue. To demonstrate that litigation is reasonably anticipated, a governmental body must furnish evidence that litigation is realistically contemplated and is more than mere conjecture. Open Records Decision No. 518 at 5 (1989). The question of whether litigation is reasonably anticipated must be determined on a case?by?case basis. See Open Records Decision No. 452 at 4 (1986). When the governmental body is the prospective plaintiff in litigation, the evidence of anticipated litigation must at least re?ect that litigation involving a speci?c matter is ?realistically contemplated.? See Open Records Decision No. 518 at 5 (1989); see also Attorney General Opinion MW-575 (1982) (investigatory file may be Withheld if governmental body?s attorney determines that it should be withheld pursuant to section 552.103 and that litigation is ?reasonably likely to result?). The Consumer Protection Division of the OAG is involved in a multistate investigation into Apple for potential violations of the Texas Deceptive Trade Practices Act. CPD initiated this investigation for enforcement purposes. If violations are uncovered, CPD will initiate enforcement proceedings. Accordingly, the OAG anticipates litigation in this matter. The representative sample of documents in Exhibit relates directly to the anticipated litigation, and has not been provided to the potential opposing party. Accordingly, the OAG asserts the representative sample of information in Exhibit may be Withheld from required public disclosure under section 552.103 of the Government Code. 11. Conclusion The OAG respectfully requests a decision from the Open Records Division regarding the applicability of the argued exception 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 Down? Assistant Atto General Public Information Coordinator Of?ce of the Attorney General CC: