Under PIA, City need only ask holders of private email accounts for responsive information in order to properly comply says 3rd Court of Appeals

City of El Paso, Texas v. Greg Abbott, Attorney General of Texas and Stephanie Townsend Allala, 03-13-00820-CV, (Tex. App. –  Austin, August 1, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Public Information Act (“PIA”) case. The subject matter of the request were messages between council members which occurred on private email accounts. The original request and suit were before the legislature changed the law making such information very clearly public.

The City originally filed suit under the PIA to withhold documents from disclosure. Allala intervened with a writ of mandamus to compel disclosure. After the legislature changed the law, the City complied with full disclosure and dismissed its claims; however, Allala continued to pursue the mandamus. The City filed a plea to the jurisdiction, which the AG did not oppose but Allala did, asserting that since it complied in full, the trial court lacked jurisdiction to issue a mandamus. After two hearings on the subject, the trial court denied the plea and the City appealed.

Allala asserted that she should be permitted to depose individuals, including council members, to ascertain whether the City fully complied with the PIA request. Allala objected to the affidavits of the City attesting to the City performing a diligent search for records and turning over all responsive information found. The court went through the detailed affidavits of what the City did in order to comply and held “the City’s jurisdictional evidence established that the City searched extensively for responsive documents, officially requested responsive documents from the individuals named in the request, and then ultimately produced to Allala all the documents that it had been able to locate.”   Allala did not produce evidence to counter the City’s assertion it had complied in full. The court then held that Tex. Gov’t Code § 552.321(a), which grants requestors the right to file mandamus actions, requires that the City “refuse”  to follow the PIA by an expressing a positive unwillingness to do comply. The City’s evidence established it was not “refusing” to comply.  Allala’s arguments deal with a situation where the City, even though making reasonable efforts to comply, may have not discovered a possible responsive document. The PIA does not authorize requestors to sue in such a situation.

Additionally, the court held that its review of the PIA “reveals no methods by which the City could compel the disclosure of public-information emails located on private email accounts” other than requesting the information from the private email holders. Additionally, the court addressed Allala’s arguments under the state’s record retention laws (a growing argument in PIA circles) noting that all records, regardless of location, are public and belong to the City. However, while Tex. Loc. Gov’t Code §202.005 provides the City a method to force someone wrongfully withholding its records by petitioning the district court, the City would not have the ability to do so within the “short turnaround time demanded by the PIA.”  To force the City to utilize that provision would “result in the expansion of the PIA’s specific waiver of sovereign immunity by grafting a discretionary Local Government Code provision that does not waive, or even concern, sovereign immunity.” The court held “[w]e are not authorized or willing to do this.” As a result, the trial court was without jurisdiction to hear Allala’s mandamus claims and the plea should have been granted.

If you would like to read this opinion click here. Panel: Chief Justice Jones, Justice Pemberton, Justice Rose. Opinion by Justice Rose.  The attorneys listed for the City of El Paso are Mr. George E. Hyde, Mr. Lowell F. Denton, and Mr. Scott M. Tschirhart.  The attorney for General Abbott is listed as Ms. Kimberly L. Fuchs.  The attorney for Allala is listed as Mr. Bill Aleshire.

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