Nonetheless, governmental bodies continue to file unnecessary requests for AG opinions regarding information that should be immediately released to the public-a practice that contributes to the large number of opinions the Attorney General must issue. For example, after the AG rules that information must be released, officials sometimes send the issue back to the AG for "reconsideration." This requires the Open Records Division to generate another letter opinion-taking two to four more months-on an already settled issue (see Table 1 below and story Attorney General Reconsiderations). In addition, agencies sometimes forward clearly public information to the AG.

State Agencies Asked for Nearly Half the Reconsiderations in 1997
	1988	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998
State Agencies	2	2	0	0	0	0	2	16	29	49	18
Cities	2	0	0	0	1	2	4	10	23	37	30
Counties	0	0	0	0	0	0	0	2	10	10	4
School Districts	0	0	0	0	1	0	1	2	8	8	5
Colleges/Universities	1	0	0	0	0	0	1	1	4	3	3
Judicial Districts	0	0	0	0	0	1	0	0	1	0	0
Port, River, Water Authorities	0	0	0	0	0	0	0	0	4	2	0
Transit Agencies	0	0	0	0	0	0	0	0	2	1	1
Other	0	0	0	0	0	0	0	1	1	0	1
Total	5	2	0	0	2	3	8	32	82	110	62
After getting an Attorney General opinion that information is public, officials sometimes send the request back to the AG for "reconsideration." Requesters then wait months before getting a new opinion, and usually the second AG opinion is the same as the first one.                                                                             Table 1

On at least 12 occasions in 1997, the Texas Department of Health (TDH) asked permission to withhold reports that had been "prepared for purposes of a Medicare or Medicaid complaint investigation."⁴⁹ The reports contained "statements of deficiencies and plans of correction" for one or more hospitals. ⁵⁰ In each instance, the AG responded that federal law specifically makes the report public, provided that patient-identifying information is deleted. Yet TDH continued to forward these reports to the AG during 1997. On one occasion, the agency even asked the Attorney General to overturn its opinion on the matter, but the AG upheld its previous decisions.⁵¹ Each time TDH asked to withhold the reports, it kept requesters waiting needlessly and, in some instances, required the AG to generate additional open records letters.⁵²

Law enforcement officials also stall the open records process by trying to withhold clearly public documents. Dallas and Houston, for example, each attempted to conceal autopsy reports in 1997, even though article 49.25 of the Texas Criminal Procedure Code "provides that an autopsy report, including the full report and detailed findings of an autopsy, is a public record."⁵³ Also, several governmental bodies in 1997 sought to withhold "front page" police report information, which includes such information as the identity of a suspect and the time and location of a crime.⁵⁴ The Arlington Police Department, for instance, tried to keep secret the narrative of an offense report, which is clearly public information.⁵⁵ In each case, the AG reminded the governmental body that Houston Chronicle v. City of Houston (1975)⁵⁶ established that information "normally found on the front page of an offense report or an arrest report is generally considered public."⁵⁷

Moreover, public officials sometimes attempt to use the law enforcement exception (§552.108) to withhold court records that should be immediately released. Several times during 1997, local law enforcement authorities asked the AG for permission to withhold probable cause affidavits supporting search warrants that had been executed.⁵⁸ Each time, the Attorney General reminded the authorities that "affidavits are public by statute if they have been executed."⁵⁹ The AG seemed to grow weary of these efforts to withhold clearly public documents. In a response to the Shelby County district attorney and a justice of the peace, the AG warned the pair: "The law enforcement exception was not intended by the Legislature to shield from public view information in the hands of police units that, absent special law enforcement needs or circumstances, would ordinarily be available to the public if possessed by a different governmental unit."⁶⁰

Government officials sometimes encourage regulated industries to classify filings as "confidential," a procedure that might generate additional work for the Attorney General if the information would otherwise be public. An air permit registration form maintained by the Texas Natural Resource Conservation Commission (TNRCC) encourages companies to mark items confidential. Section 1, separated by a box and marked "Very Important," instructs permit applicants to identify "in big red letters" all materials that are confidential. The form does not instruct companies on the meaning of this term under Texas law.⁶¹ According to the Attorney General, the PIA does not require a third party to substantiate its claims of confidentiality at the time it submits material to a governmental body.⁶²

In August 1997, a citizen asked TNRCC for reports relating to petroleum contamination at a site in McAllen. The agency forwarded to the AG one report that had been submitted under a claim of confidentiality. In October 1997, the company told the Attorney General it had no objection to the release of the "confidential" report. In November, three months after the citizen's initial request, the AG ruled that the report could be released because no exception had been raised for withholding it.⁶³

The litigation exception also appears to generate unnecessary requests for AG opinions. To withhold information under §552.103, governmental bodies must show that litigation is pending or reasonably anticipated and that the information is related to the litigation.⁶⁴ Sometimes, government officials submit information so tangential to an existing suit that the AG cannot make the minimal determination that it is "related" to the litigation.⁶⁵ Other times, the Attorney General finds that governmental bodies have submitted unsubstantiated claims that litigation is reasonably anticipated.⁶⁶

When Charles Ornstein of the Dallas Morning News asked the city of Garland for a 911 tape related to a drowning, the city forwarded the request to the Attorney General for a determination under §552.103. "Having considered the totality of the circumstances presented in this case, we find that you have not provided this office with concrete evidence to substantiate the claim that the city reasonably anticipates litigation," the AG wrote. "Since requesting a decision from this office, you have not notified us of any changed circumstances in this case that would lead us to conclude that the city reasonably anticipates litigation at this time."⁶⁷

Sometimes, officials appear to forward open records requests to the AG merely because they believe the government may bear some liability for an incident, whether or not anyone threatens to sue. For instance, an attorney recently asked the city of Houston for a police report. Based on the fact that the attorney's client suffered an injury, and the attorney requested the information, the city sent the request to the AG for a determination under §552.103, although city officials provided no evidence of a threatened lawsuit.⁶⁸

Moreover, officials sometimes attempt to use the litigation exception to withhold information that previously has been released to the public. The Texas Department of Health (TDH) released information about a Houston building renovation to the Environmental Protection Agency (EPA) and to Continental Court Reporters, Inc. But when an attorney subsequently requested the same information, TDH asserted the litigation exception because the EPA had opened an investigation. Although litigation by EPA might have been reasonably anticipated, the Act does not allow governmental bodies to selectively provide information to some requesters and not others.⁶⁹

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