Received by Open Records MAR 27 2020 KEN PAXTON ATTORNEY GENERAL. OF TEXAS March 27, 2020 Mr. Justin Gordon Open Records Division Office of the Attorney General P.O. Box 12548 Austin, TX 78711-2548 Re: Public Information Request No. R003908 Dear Mr. Gordon: On March 18, 2020, the Office of the Attorney General (the “OAG”) received a public information request under the Public Information Act (the “PIA”), Chapter 552, Government Code, from| RR A copy of the request is attached as Exhibit A. The OAG asserts the requested information is excepted from required public disclosure under the PIA. Pursuant to sections 552.301(b) and 552.301(e) of the Government Code, the OAG submits this brief to seek a decision as to wheth 2.103 of the Government Code applies to the requested information, We have oe lll: arecipient of this brief pursuant to sections 552.301(d) and 552.301 (e-1) of the Government Code. representative sample of the information at issue is attached as Exhibit B. I, Information Excepted from Required Public Disclosure Under Section 552.103: Anticipated Litigation Section 552.103(a) of the Government Code states that information is excepted ftom required public disclosure if it is information: relating to litigation of a civil or criminal nature to which the state or a political subdivision is ormay be a party or to which an officer or employee of the state ora 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 is applicable in @ 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 $.W.2d 210, 212 (Tex. App.—Houston [1st Post Office Box 12548, Austin. Texas 78711-2548 + (512) 463-2190 + www.texasattorneyzenerat. govDist.] 1984, writ red n.re.); ORD $51 at4. The OAG must meet both prongs of this test for information to be excepted under section 552.103(a). 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 reflect that litigation involving a specific matter is “realistically contemplated.” See Open Records Decision No. 518 at 5 (1989); see also Attomey 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 (“CPD”) 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 B 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 B may be withheld from required public disclosure under section 552.103 of the Government Code. Hi, Conclusion The OAG respectfully requests a decision from the Open Records Div ion 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, (a Lauren Downs Assistant Attoxugy General Public Information Coordinator Office of the Attorney General ce: