Response to PIA requests from inmates is discretionary, so mandamus is improper

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Robert Brown, III v City of Austin, 03-19-00035-CV (Tex. App. – Austin, August 29, 2019).

This is a Public Information Act (PIA) case where the Austin Court of Appeals dismissed a petition for writ of mandamus to compel production of two police reports.

Brown was arrested and subsequently filed a PIA request for the offense report involving his incident and an offense report allegedly committed by a third-party the year before his incident. When the City did not provide the report he filed a petition for writ of mandamus. Brown was an inmate at the Texas Department of Criminal Justice when he filed his petition and remains incarcerated. The City answered the lawsuit and then filed a chapter 14 motion to dismiss, which was granted by the trial court. Brown appealed.

The PIA affords governmental bodies discretion in determining whether to comply with information requests of inmates. Tex. Gov’t Code § 552.028.  Because a governmental body’s disclosure of information requested by an inmate is discretionary—rather than a ministerial act—mandamus will not issue to compel the act, and Brown has no arguable basis in law to support his claim. Brown claims the City is nonetheless required to provide the reports under Tex. Fam. Code § 261.201(g) and (k) (family violence statute). However, subsection (g) only applies to PIAs filed with the Department of Family and Protective Services.  Subsection (k) allows a “parent, managing conservator, or other legal representative of a child” to obtain requested reports of abuse or neglect of that child from an investigating agency.   While Brown asserts he is the “soon to be step-father”, Brown has not alleged any facts supporting his status as a parent or managing conservator as those terms are defined in the Family Code.  As a result, his mandamus has no basis in the law and the motion to dismiss was proper.

If you would like to read this opinion click here. Panel consists of  Justices Goodwin, Baker and Kelly. Opinion by Justice Baker.

Posted in PIA

3rd Court of Appeals holds PIA appeal deadline for entity to challenge AG opinion is jurisdictional

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San Jacinto River Authority v. Ken Paxton,  03-18-00 547-CV (Austin, Aug. 22. 2019) 

This is the Public Information Act (PIA) case where the Austin Court of Appeals held an entity must file suit to appeal an AG opinion within the jurisdictional time limit. 

San Jacinto River Authority (SJRA) received PIA requests from McFarland and Fuchs for communications discussing a specific release of water. It submitted a request for both on the same day.  The AG issued an opinion on the McFarland request opining SJRA could withhold information, but SJRA did not timely submit an opinion request regarding Fuchs and the information must be released. The opinion had language SJRA asserts was an indicated to seek reconsideration. SJRA attempted to seek a reconsideration but was told, by AG letter, the PIA does not allow such. They filed suit to appeal the decision, but it was outside the time frame for appeal of the opinion. SJRA asserted the non-reconsideration letter was the proper trigger point. The AG filed a plea to the jurisdiction, which was granted. SJRA appealed. 

The court analyzed the statutory section regarding an entities ability to file suit to challenge an AG opinion. It held filing suit within the 30 day time period was jurisdictional. The non-reconsideration letter cannot reasonably be characterized as “the decision determining that the requested information must be disclosed” because it did not make any reference to disclosure of the information. It is merely a post-decision correspondence informing SJRA it was prohibited from asking for a reconsideration. The opinion also held the separate declaratory judgment claims were redundant and no jurisdiction existed for it.  SJRA asserted the AG should be estopped from using the jurisdictional arguments because it invited reconsideration, causing delay past the deadline. However, the court held estoppel cannot convey jurisdiction. Finally, regardless of SJRA’s “compelling reason” for withholding the information, the trial I court lacks jurisdiction to hear them since SJRA missed the deadline. The plea is affirmed. 

If you would like to read this opinion click here. Panel consists of Justices Goodwin, Baker, and Triana. Memorandum opinion by Justice Baker. 

Texarkana Court of Appeals holds noncore attorney work product is confidential and not subject to PIA disclosure.

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Ken Paxton, Attorney General of the State of Texas v. City of Dallas, 06-18-00095-CV, (Tex.  App. – Texarkana, May 15, 2019).

In this Texas Public Information Act (“PIA”) case, the Texarkana Court of Appeals held noncore attorney work product is confidential and not subject to public disclosure under the PIA.

The City received seven PIA requests for reports and other records relating to specified incident investigations, each conducted in response to a notice of claim for damages received by the City. In each case, the City sought an AG opinion and was told to release the information. The City filed suit as an appeal. In cross-motions for summary judgment the trial court ruled for the City holding the information was confidential. The AG appealed.

“Core public information” is protected from disclosure only “if it is confidential under either the PIA or other law.” Core public information (also referenced as “super-public” information) includes “a completed report, audit, evaluation, or investigation made of, for, or by a governmental body.” Tex. Gov’t Code Ann. § 552.022(a)(1). It is confidential only if made so by other law.  The City asserted the information is noncore work product under Rule 192.5 of the Texas Rules of Civil Procedure and, therefore, is “confidential under . . . other law.” The Texas Supreme Court has described the level of protection accorded to core work product as, “inviolate,” “flatly not discoverable,” and “sacrosanct and its protection impermeable.” In contrast, noncore work product is “[a]ny other work product” that is not core work product.  The record indicates the information at issue includes the City’s investigations, evaluation of claims filed against the City and liability analysis prepared by the City’s employees and agents after the City received the notices of claim. The City employees testified the information constitutes material prepared or mental impressions developed in anticipation of litigation or for trial. Each of the notices of claim in question constitute statutory notices required by the Texas Tort Claims Act. As such, they satisfy the objective standard for anticipated litigation. The in-camera review of the records indicated to the court that the City’s investigations were conducted for the purpose of preparing for potential litigation, therefore qualifying for the subjective prong of the anticipated litigation analysis.  The records are therefore “noncore” work product under Rule 192.5. Finally, after a lengthy analysis of Rule 192.5, the court held the noncore work product was confidential.  The trial court judgment was affirmed.

If you would like to read this opinion click here.  Panel by Chief Justice Morriss III, Justice Burgess and Justice Stevens. Memorandum Opinion by Justice Burgess.  The attorneys listed for the City of Dallas are James B. Pinson and Nicholas D. Palmer.  The attorney listed for General Paxton is Matthew R. Entsminger.

Texas Supreme Court holds entity not required to show risk of harm to a specific individual in order to except records from PIA release

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Texas Department of Criminal Justice v Levin, 17-0552 (Tex. April 12, 2019)

This is a Public Information Act (PIA) case in which the Texas Supreme Court held the PIA must yield to protecting information that, if released, would create a substantial threat of physical harm to the source’s employees and others.

The Levin plaintiffs (Levin) represent capital defendants on death row. Concerned with the possibility of mismanaged executions by lethal injection, Levin made a PIA request of the Department, which included a list of drugs used for lethal injections and their source. The Department did not release the specific identity of the pharmacy or pharmacist that compounded the drugs (i.e., “source”) and requested an Attorney-General opinion. The AG agreed with the Department that the PIA has a common-law exception where release would create a substantial risk of harm. Levin appealed. While on appeal, the Legislature amended the PIA to create a statutory exception for the source of drugs used for executions.

In prior court and AG opinions, a threat to a specific party was required in order to take advantage of the common-law exception. Here, no one but the Department and the pharmacy itself knows the identity of the source that supplies the lethal injection drugs to the State of Texas. There is no evidence of a history of specific threats to that particular pharmacist or pharmacy, because the source’s identity has been kept confidential. The Court noted, however, that the word “substantial” as used in prior opinions does not refer to the degree to which harm is likely to occur, but rather, the degree of the potential threat of harm itself. Courts should focus on the connection between the requested information, on the one hand, and the potential threat and magnitude of such harm, on the other. The Court found, based on the summary judgment evidence, that the Department properly established release of the information potentially would create substantial physical harm which does not currently focus on an identified person, including evidence of what happened to other pharmacies when release of similar information became public. (Note: some but not all of the evidence was considered relevant). As a result, the Department must withhold the information requested.

If you wish to read this opinion, click here. Justice Green delivered the opinion of the Court. The docket page with the attorney information is found here.

Amarillo Court of Appeals holds no jurisdiction exists under PIA unless university “refuses” to supply information

Texas Tech University v. Dolcefino Communications, LLC dba Dolcefino Consulting, 07-18-00225-CV (Tex. App. – Amarillo, December 4, 2018).

This is a Public Information Act (“PIA”) case where the Amarillo Court of Appeals reversed the denial of a plea to the jurisdiction and held Texas Tech University properly complied with the PIA.

Dolcefino Communications, LLC (“Dolcefino”) requested various records from Texas Tech under the PIA. Texas Tech produced some but did not produce all the records requested. Dolcefino filed a petition for mandamus relief under Tex. Gov’t Code §552.321. Texas Tech filed a plea to the jurisdiction, which was denied. Texas Tech appealed.

The Legislature has prescribed that all statutory prerequisites to suit are jurisdictional in suits against governmental entities.  While the PIA waives immunity to a limited extent, the waiver is not all encompassing. Under the PIA, a requestor may file suit only upon showing that the governmental body “refuses to supply public information” or “refuses to request an attorney general’s decision.”  Such are statutory prerequisites to suit. The lion’s share of Dolcefino’s requests at issue were deemed “withdrawn as a matter of law” by Texas Tech. Dolcefino do not respond in writing to the itemized statement of costs or provide a bond within the time period. Dolcefino did not (1) accept the estimated charges, (2) modify its requests, or (3) send a complaint to the attorney general.  Dolcefino and Texas Tech did engage in what Dolcefino characterizes as a “back-and-forth” regarding the charges due.  However, an ongoing parleying over price does not provide a basis for overriding the statutory scheme for responding to an estimate of charges. The request was properly considered withdrawn. The court also dismissed Dolcefino’s argument Texas Tech waived the withdrawal language since estoppel does not run against a governmental entity.  Regarding the remaining portions of the request, Texas Tech asserts no responsive documents exist. However, a movant in a plea to the jurisdiction must assert and support with evidence the trial court’s lack of subject matter jurisdiction.  The court analyzed the emails back and forth with Dolcefino where Texas Tech asserted it did not have certain specific documents. Dolcefino asserted the statements were conclusory and not competent evidence. The court held “[a]s sparse as this additional data may be, it nevertheless insulates Texas Tech’s reply from a potential attack as conclusory.” Texas Tech produced some evidence that it was not “refusing” to provide public information to Dolcefino.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panelconsists of Chief Justice Quinn, Justice Campbell, Justice Parker. Opinion byJustice Parker. The attorneys listed for Texas Tech are Eric A. Hudson and EnriqueM. Varela.  The attorneys listed forDolcefino are Michael K. Hurst, Julie Pettit, David B. Urteago, David Coale.

Order for City to release documents under PIA and certify compliance was not a “temporary injunction” entitling City to interlocutory appeal says Houston’s 1st District Court of Appeals

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City of Houston v Dolcefino  Communications, et al., 01-17-00979-CV (Tex. App. – Houston [1st Dist.], October 30, 2018

This is an interlocutory appeal in a Public Information Act (“PIA”) case where the First District Court of Appeals determined it lacked interlocutory jurisdiction.

EcoHub was negotiating with the City to be a recycler for the City. When the City declined to utilize them, EcoHub hired Dolcefino, an investigative journalist, to research the City’s recycling contracts. Dolcefino made multiple requests for public records from the City. After not receiving documents Dolcefino believed he was entitled to receive, he brought a petition for writ of mandamus. Dolcefino filed a motion to compel the production of documents responsive to his requests. The City responded that, while it took longer than expected, it already produced most of the documents to Dolcefino. The trial court issued an order 1) ordering production of all responsive documents, 2) that the City certify, in writing, it has provided all responsive documents, 3) produce all non-produced records (noted as non-disclosable under an AG opinion) to the court for in camera inspection, and certify it has complied with all requirements. The City, while providing all in camera documents and having produced all others, still argued the court could not grant the motion to compel as the PIA only contemplates disclosure under a protective order and after certain procedures. Certification is also not required under PIA. The City filed an interlocutory appeal asserting it was appealing the granting of a temporary injunction order.

The court first noted that Tex. Civ. Prac. &  Rem. Code § 51.014(a)(4) gives it interlocutory jurisdiction over an injunction order. However, the order to compel is not truly an injunction. The purpose of a temporary injunction is to preserve the status quo. At one of the hearings the court asked the City whether all documents which were disclosable had been turned over and the City’s attorneys gave two conflicting answers. So, the court ordered the City to figure out the answer and certify it to the court. The trial court’s order does not require the City to perform any action that rises to the level of an injunction. Instead, the order merely attempts to clarify whether the City has complied with the PIA requests, other than the documents that have been submitted to the trial court for in camera review. With no injunction order present, the court does not have interlocutory jurisdiction to hear the appeal.

If you would like to read this opinion click here. Panel consist of Chief Justice Radack, Justice Brown and Justice Caughey. Memorandum Opinion Per Curiam.  The attorneys listed for Dolcefino are Stewart E. Hoffer and Fran Robin Kantor Aden.  The attorneys listed for the  City are  Fernando De Leon, Patricia L. Casey and Suzanne R. Chauvin.

City of Houston can be sued by pension board for non-compliance with statutory pension provision and PIA

 

City of Houston, et. al.  v. Houston municipal employees pension system, 17-0242, — S.W. 3d — (Tex. June 8, 2018).

City of Houston created several local government corporations to which it transferred some of its employees. Specifically at issue is the adoption of resolutions by the Houston Municipal Employees Pension System’s Board of Trustees (the board) related to those employees, their status, and the City’s obligation to contribute to the pension fund. Under the state statute applicable to Houston’s board, the board has authority to interpret the statute and such interpretation is considered final.  The system interpreted the term “employee” subject to the pension fund to include employees of several local government corporations, especially those where the corporation is controlled by City appointees and funded by the City (such as the pension system employees).  The City refused to fund those individuals and the system sued under an ultra virestheory. It also sued for failure to provide information under the Texas Public Information Act (TPIA).

The Court first held that the statute states the pension system can file suit on behalf of the board, therefore the system has standing. The Court agreed with the City that the system was trying to use an ultra viresclaim to enforce a contract where the end result is the payment of funds.  However, the contract in this case was simply the mechanism used for the City to comply with the requirements of the statute. The City must still follow the statutory requirements for funding the pension plan, so the system can bring an ultra viresclaim to compel compliance with the statute. However, the Court interpreted the pleadings to read the system seeking prospective relief only. Strangely enough, the Court held that the identity of the party is not relevant to the jurisdictional situation in the PIA portion of this case (city v Public Information Officer) as a mandamus is proper against the entity under the PIA.  However, the PIA is not applicable to the other defendants who are not the PIO or the City.   It also held that where the City has a right of access to the information (that of the other corporations), the information is subject to the PIA. Therefore jurisdiction is proper for the system’s claims.

If you would like to read this opinion, click here.Justice Johnson PER CURIAM.

 

Administrative records of county court at law not subject to PIA says Houston’s First District Court of Appeals

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Enrique Ramirez v. Ed Wells, Court Manager, 01-17-00262-CV (Tex. App. – Houston [1st Dist.], March 27, 2018)

This is a Texas Public Information Act (“PIA”) suit where the 1st District Court of Appeals in Houston affirmed the trial court judgment in favor of the court administration defendants.

Ramirez was removed from the eligibility list to receive criminal court appointments in the Harris County Criminal Courts at Law, after having been on the list for some time. Ramirez filed a PIA to see all records related to his removal. The Court Manager informed him the judiciary is exempt from the PIA and the rules of judicial administration protects release of internal deliberations of the court. The question under Rule 12 is whether the documents are court administrative files vs judicial records. Ramirez appealed to the Office of Court Administration (“OCA”), arguing that the decision to remove him from the list was an administrative decision and thus the information he requested did not constitute judicial records. The OCA agreed they were administrative, but determined it only had authority over judicial records so could not grant Ramirez any relief. Ramirez filed a petition for writ of mandamus under PIA to compel release of the records. After opposing summary judgments, the trial court granted the Defendant’s MSJ and denied Ramirez’ MSJ. Ramirez appealed.

Under the PIA, the judiciary is specifically excluded in the PIA’s definition of “governmental body.”  Access to information collected, assembled, or maintained by or for the judiciary is governed by the rules adopted by the Supreme Court of Texas or by other applicable laws and rules. The record demonstrated that regardless of whether the records were “judicial” or “administrative” they qualify as “information produced, maintained, or assembled by the judiciary.”  Access is therefore not governed by the PIA. Since Ramirez’ petition only seeks mandamus under the PIA, the trial court properly denied his summary judgment.

If you would like to read this opinion click here. Panel consists of Chief Justice Radack, Justice Massengale and Justice Brown. Memorandum Opinion by Chief Justice Radack.  The attorney listed for Ramirez is Timothy A. Hootman.  The attorney listed for the Defendants is Stephen A. Smith.

Texarkana Court of Appeals holds county court at law has jurisdiction to hear PIA mandamus against city, despite district court language in PIA

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Kenneth Craig Miller v. Gregg County, 06-17-00091-CV (Tex. App. – Texarkana, March 20, 2018).

This is a Public Information Act (“PIA”) lawsuit in which the Texarkana Court of Appeals flipped back and forth between sections of the Government Code before modifying the trial court’s order regarding release of certain records held by Gregg County (“County”).

Miller sought a PIA request to allegedly “expose the depth and degree of the intimate relationships”  between City of East Mountain Police and Deputies of the Gregg County Sheriff’s Office. Miller filed a suit under the PIA seeking a writ of mandamus in County Court at Law #2 to compel Gregg County to disclose certain police phone log information.  The County filed a plea to the jurisdiction, which was granted.  Miller appealed.

The PIA states “A suit filed by a requestor under this section must be filed in a district court for the county in which the main offices of the governmental body are located.” TEX. GOV’T CODE ANN. § 552.321(b) (West 2012).  “District courts are always the courts of exclusive original jurisdiction for mandamus proceedings unless the constitution or a law confers such jurisdiction on another tribunal.” Miller asserts §25.0003(a) of the Texas Government Code states “In addition to other jurisdiction provided by law, a statutory county court exercising civil jurisdiction concurrent with the constitutional jurisdiction of the county court has concurrent jurisdiction with the district court in: (1) civil cases in which the matter in controversy exceeds $500 but does not exceed $200,000, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs, as alleged on the face of the petition…” However, the Texas Legislature expressly amended the PIA in 1999 and added the requirement a suit be brought in district court. The Court of Appeals held this created a “condition precedent” to bringing a PIA mandamus action under Government Code §311.016(3). The Court of Appeals stated the question for it, then becomes, does §552.321(b) trump other sections of the Government Code. After a statutory construction analysis, the Texarkana Court held §552.321(b) does not deprive a county court at law of its jurisdiction under §25.0003(a). That being said, the Court then analyzed the evidence submitted and the extent to which the County searched for responsive phone records requested.  The County presented uncontroverted evidence that no responsive documents exist. As a result, the trial court properly granted the plea, but based on the challenge to jurisdictional facts, not the jurisdiction of a county court at law.  The court then modified the judgement, taking out references to dismissal of claims for declaratory and injunctive relief, which were not present in Miller’s prayer for relief.

If you would like to read this opinion click here. Panel consists of Chief Justice III Morriss,
Justice Moseley and Justice Burgess. Opinion by Justice Moseley. The attorney listed for the County is Robert S. Davis.  The attorney listed for Miller is Andrew R. Korn.

City did not act in bad faith under PIA in cost estimate calculation; City established it produced all records discovered

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Mark Rines v. City of Carrollton 05-15-01321-CV (Tex. App—Dallas, February 13, 2018)

This is a Texas Public Information Act (“PIA”) case where the Dallas Court of Appeals affirmed the trial courts order dismissing the Requestor’s lawsuit. [Comment: this case is a rare one which also deals with cost estimates and allegations of overcharging.]

Rines, the Requestor, filed a PIA request for the civil service files of fourteen specified police officers. The City requested an Attorney General (“AG”) opinion for some documents, and issued a cost estimate letter for the remainder. After production of the uncontested documents, the City refunded some of the costs paid bythe Requestor. After receipt of the AG opinions, Rines filed suit asserting the City acted in bad faith in providing a cost estimate letter and that the City did not comply with his request. The City filed a plea to the jurisdiction which included an evidentiary hearing with testimony. The trial court granted the City’s plea and issued findings of fact and conclusions of law. Rines appealed.

The City’s testimony included how specific City employees conducted searches for records and the results. The City established it produce all records it located which were not contested under the AG opinion request. Rines asserts documents still exist and are missing which must be produced. He also objected to the testimony of record officials who did not have personal knowledge of the records being searched. However, the testimony established the record retention individuals’ job duties entailed custodial functions of the records. Further, Rine’s objection during the hearing was not ruled upon, so provides the appeals court nothing to review. In general, the City’s jurisdictional evidence demonstrates it searched for the requested information, officially requested responsive documents from relevant individuals, and produced to appellant all responsive information it was able to locate and obtain. Rines produced no evidence as to what was missing or that it was within the City’s records. The City conclusively established it complied with release under the Act.  Rines further did not provide evidence the City’s initial computation for the cost estimate was inaccurate based on the information available at the time. He provided no evidence of how the computation occurred and what was considered. After release, the City refunded monies based on the actual numbers released, but such factored in the non-release of information discovered but subject to the AG opinion.  Nothing indicates the City did not act in good faith in its initial calculation. Simply because the end cost is different does not equate to bad faith.

If you would like to read this opinion click here. Panel consists of Justices Lang, Brown and Whitehill. Justice Lang delivered the opinion of the court. Mark Rines appeared pro se. The attorneys listed for the City are Darrell G-M Noga and Christopher Klement.

Under PIA, school could reasonably anticipate litigation even though it was given only a “conditional” threat of suit

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Appellant, B. W. B.// Cross-Appellant, Eanes Independent School District v. Appellee, Eanes Independent School District// Cross-Appellee, B. W. B03-16-00710-CV (Tex. App — Austin, January 10, 2018)

This is a Public Information Act (“PIA”) and mandamus action where the Austin Court of Appeals affirmed the order granting in part the school’s motion for summary judgment but denying its plea to the jurisdiction.  BWD’s daughter attended Eanes Independent School District (“EISD”) and was on the soccer team. BWD alleges the coach bullied his daughter and released her private information, thereby violating FERPA, HIPPA, and EISD’s Acceptable Use Guidelines for Technology.  He requested records related to Coach Rebe from EISD. The school sought an AG opinion regarding certain documents.  However, federal regulations do not allow the AG to review certain documents pertaining to student records. The AG deferred to the EISD to determine student record applicability.  The AG then determining the remining records were excepted under the litigation exception of the PIA since BWD had threatened formal complaints under the administrative process against the coach. BWD filed suit to compel the disclosure of the records. The trial court denied EISD’s plea to the jurisdiction but granted, in part, EISD’s summary judgment motion.

The court first held, contrary to EISD’s arguments in its plea, requestors are permitted to sue for mandamus to challenge an AG opinion regarding the release of information. They are not required to accept the AG’s determination of any exceptions. Therefore, the trial court has jurisdiction over this suit. FERPA (the federal statute on school privacy issues) establishes BWD has no standing to challenge EISD’s determination of what is a student record and what is not. Under FERPA a parent has a right to examine those records, and this right trumps the PIA’s litigation exception. Unfortunately, FERPA creates no private right of action. BWD’s course of action is to file a complaint with the federal Department of Education for the right to inspect the records.

For what remains, in order to fall within the litigation exception, the school must have reasonably anticipated litigation at the time of the records request and the withheld information must relate to the anticipated litigation. An isolated threat over the telephone, without more, does not trigger “reasonably anticipated litigation” for an entity. However, when a genuine dispute exists involving the entity, at least one threat of litigation has been presented, and the entity receives communication from an attorney, an entity may reasonably anticipate litigation. Here, BWD sent an email to Coach Rebe and carbon copied four other EISD email addresses addressing the dispute. His attorney contacted the school and stated they intend to file a formal administrative complaint, but they would not file suit if the coach had no further contact with the student. A “conditional” threat of litigation, matched with the other case specific facts, established EISD could reasonably anticipate litigation in order to assert the exception. The documents at issue in this case relate directly to the dispute and the coach. As a result, they can be withheld.

If you would like to read the opinion click here. Panel consists of Chief Justice Rose, Justice Field and Justice Bourland.  Memorandum opinion by Justice Field. The attorneys listed for B.B.W is Brian W. Bishop John J. Hightower. The attorneys listed for the Eanes Independent School District are Jonathan G. Brush and Dylan Farmer.

Austin Court of Appeals holds Medicaid claim information is not protected and potentially subject to disclosure under Public Information Act

 

Ken Paxton, Attorney General of the State of Texas v. Texas Health and Human Services Commission 03-15-00652-CV (Tex.App. – Austin, December 14, 2017)

This is a Public Information Act (“PIA”) lawsuit where the Austin Court of Appeals reversed the granting of a summary judgment in favor of the Commission and remanded the matter back to the trial court.

Texas Health and Human Services Commission (“HHSC”) received a PIA request for healthcare-service providers’ Medicaid claims for reimbursement.  HHSC asserted the names of, or any information concerning, persons applying for or receiving Medicaid assistance is confidential. The AG issued an opinion the information must be released because it does not identify the individuals from whose claims the information is derived and, thus, is not “any information concerning” Medicaid applicants or recipients.  After opposing summary judgments, the trial court ruled for HHSC that the information was excepted from disclosure. The AG appealed.

HHSC is charged with supervising the administration and operation of the Texas Medicaid program.  The specific Medicaid-claim information requested was “date of service; procedure code; claim status; billed amount; paid amount; provider name and ID; provider codes; and billing entity.” The AG agreed the claim numbers were protected, but the remainder of the information must be released. Tex. Hum. Res. Code § 12.003 states the names and “any information concerning persons applying for or receiving [Medicaid] assistance” are confidential. The statutory construction in this case centered on the phrase “any information concerning” Medicaid recipients. HHSC asserts that since the claim payment information is derived from individual patient treatments, it qualifies as “any information concerning” the recipient. However, the panel disagreed. The fact the information requested is necessarily taken from individuals’ Medicaid files is not dispositive. The court analyzed the sentence structure, but held the requirement it read the statute liberally to promote disclosure should win out.  Section 12.003, therefore, expresses an intent to shield only that information in Medicaid records that names or refers to Medicaid applicants or recipients—i.e., identifies the applicants or recipients, discloses their personal information, or could be used to identify them. However, the court held the AG did not negate the fact the information could be used to derive the identity of a recipient. Therefore, it remanded the case.

Jusice Bourland dissented noting the phrase “any information concerning” is broad and the principles of statutory construction as well as the plain meaning favor a board reading. Courts should not ignore the plain language of the text in favor of liberal PIA construction. Her dissent can be found here.

If you would like to read the majority opinion click here. Panel consists of Chief Justices Rose, Pemberton, and Bourland. Memorandum Opinion by Justice Rose. To see the attorneys listed for the Appellants and Appellee click here.

 

 

Posted in PIA

Texas Supreme Court holds attorney/client privilege, by itself, is a compelling reason not to release under the PIA even if an entity blows a deadline

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KEN PAXTON, ATTORNEY GENERAL OF TEXAS v. CITY OF DALLAS; from Travis County; 3rd Court of Appeals District, No. 15-0073 (Tex. February 3,2017)

This is a Texas Public Information Act (“PIA”) case where the Texas Supreme Court holds the attorney/client privilege, in and of itself, is a compelling reason to prevent disclosure under the PIA, even if an entity untimely requests an AG opinion. Case of first impression, long opinion, so long summary.

The City of Dallas received two PIA requests for information, but failed to timely notify the Texas Attorney General within the ten-business day deadline of its intent to seek an AG opinion. The City did seek an opinion and asserted the documents are protected by the attorney/client privilege. The AG determined that since the City failed to timely request an opinion, it waived the privilege and all documents must be released. When an entity fails to timely request an opinion, the documents are presumed public unless there is a compelling reason to withhold the information. The AG did not consider the privilege a compelling reason. The City filed suit under the PIA to obtain judicial rulings but received conflicting results at the trial courts. The City and AG appealed respectively. At the different court of appeals levels, both courts held the privilege was a compelling reason to withhold the information. Summaries found here and here. The AG filed a petition for review for both cases.

The Court went into great detail and history (39 pages worth) discussing the balance between the attorney/client privilege (which is for the public’s benefit for governmental advice) and the public’s right to information (which is also for the public’s benefit). It noted the AG has determined through agency precedent that the mere ability to waive the attorney-client privilege automatically and categorically precludes the privilege from constituting a compelling reason even when the privilege has not actually been waived. The Court rejected this argument and held “[b]ecause failing to meet the PIA’s deadline to assert a statutory exception to disclosure does not, in and of itself, constitute waiver of the attorney-client privilege, requested information does not automatically lose its confidential status.” It further rejected the AG’s interpretation for all exceptions under the PIA, “that something more is always required to rebut the presumption that arises from a governmental body’s failure to timely request an attorney general decision.”  The Court held the certain exceptions (not all but some) can be compelling reasons in their own right. The AG’s interpretation alters the plain language of the PIA. “To require public disclosure of confidential attorney-client communications as an automatic—and irremediable—sanction for missing a statutory deadline is not necessary to achieve the PIA’s objective of an open government and would be a jurisprudential course fraught with peril.”  Finally, Justice Guzman puts an accurate but humorous summary on the entire thing by writing “[r]obotic perfection by a governmental body’s public information officer is a statutory ideal, not an absolute requirement. To err is human, but to conduct a City’s legal affairs without the occasional error would require divinity.”

The dissent writes for 37 pages but essentially states the attorney/client privilege, by itself, is not enough to overcome the presumption of openness which attaches when the PIA deadlines are not met. The dissent would require an additional showing of a compelling reason for the non-release.

If you would like to read this opinion click here. Justice Guzman delivered the opinion of the court in which Chief Justice Hecht, Justice Green, Justice Willett, Justice Lehrmann, Justice Devine, and Justice Brown joined. To see the Dissenting opinion delivered by Justice Boyd, in which Justice Johnson joined click here.   To see the Representatives for the parties, click here for the Docket Page.

Posted in PIA

Austin Court of Appeals grants TABC plea to the jurisdiction in PIA lawsuit by requestor

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McLane Company, Inc. v. Texas Alcoholic Beverage Commission, et al., No.03-16-00415-CV (Tex. App. – Austin, February 1, 2017).

This is a Texas Public Information Act (“PIA”) request lawsuit where the Austin Court of Appeals affirmed the granting of several pleas to the jurisdiction by a state official and the Texas Alcoholic Beverage Commission (“TABC”).

In 2015 McLane Company, Inc. (“McLane”) submitted a PIA request to the TABC. The TABC sought an opinion from the Texas Attorney General’s Office under the PIA procedures. The AG determined most of the information must be released, but allowed two exceptions. The TABC filed suit against the AG and McLane intervened. McLane seeks a writ of mandamus ordering TABC to produce the requested information. McLane also seeks declarations under the Texas Uniform Declaratory Judgments Act (“UDJA”). It further sued Sherry Cook, TABC’s Chief Administrative Officer and Officer for Public Information asserting her failure to release the information as an ultra-vires activity. TABC filed a plea to the jurisdiction contending sovereign immunity deprived the trial court of jurisdiction over McLane’s UDJA and ultra-vires claims. Cook also filed a plea to the jurisdiction asserting that sovereign immunity barred McLane’s suit against her. The trial court granted the pleas and McLane appealed.

The Texas Supreme Court has explained that “the UDJA does not enlarge the trial court’s jurisdiction but is ‘merely a procedural device for deciding cases already within a court’s jurisdiction.’” Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) (per curiam).  To the extent McLane’s petition seeks the trial court to order “the PIA requires the TABC and Cook to promptly search for and produce” responsive documents, and the method in which they are to search, such a suit falls outside of the confines of the declaratory judgment action authorized by the PIA. Instead, such relief seeks a declaration of McLane’s rights under the statute.  As articulated in the Sefzik case, immunity is not waived under the UDJA except where the invalidity of an ordinance or statute is at play. The UDJA does not waive sovereign immunity for “bare statutory construction” claims. As a result, the UDJA claims raised in the plea were properly dismissed. Further, while sovereign immunity does not bar a true ultra-vires claim against a public official, McLane’s claims stem from the belief Cook was not performing a reasonably comprehensive search. The PIA does not authorize a declaration as to the search performed. Further, even if a proper ultra-vires claim was factually pled, the redundant remedies doctrine precludes McLane pursuing it.  The legislature created an explicit waiver of sovereign immunity in the PIA, and neither TABC nor Cook has challenged McLane’s right to intervene in the underlying PIA suit. McLane has a right of potential recovery under the PIA and therefore cannot sue for the same thing under an ultra-vires theory. As a result, the trial court property granted the plea.

If you would like to read this opinion click here. The Panel Includes Chief Justice Rose, Justice Field, and Justice Bourland. Justice Field delivered the opinion of the court. Click here for the docket page to see the representatives for the parties.

Austin Court of Appeals holds OIG investigation is open to the public since it did not concern health care fraud

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Ken Paxton, Attorney General of the State of Texas v. Texas Department of State Health Services, 03-14-00594-CV (Tex. App— Austin, August 31, 2016)

This is a Public Information Act (“PIA”) case where the Austin Court of Appeals reversed the granting of a summary judgment for the Department of State Health Services (“DSHS”).

Iris, a Department employee, filed a complaint against Angel, another Department employee. The OIG investigated the complaint but found that the allegations of misconduct against Angel could not be substantiated. Both Iris and Angel filed open-records. DSHS sought to withhold information collected by the Office of the Inspector General (OIG) during the investigation under a Government Code provision that makes information and materials “compiled by the [OIG] in connection with an audit or investigation” confidential and not subject to disclosure under the PIA.  The AG noted this provision is found in the OIG’s enabling provisions regarding fraud and abuse and the underlying OIG investigation did not concern “Medicaid or other health and human services fraud, abuse, or overcharges.”  After opposing summary judgments, the trial court ruled for DSHS. The AG appealed.

The Department maintains that, on its face, the text of section 531.1021(g) places no limits on or requirements for the subject matter of an OIG audit or investigation to which confidentiality attaches. But such an interpretation fails when the provision is considered in the context of the OIG’s enabling provisions. When considered in its proper context, the Legislature intended for confidentiality to extend only to those OIG audits and investigations concerning “fraud, waste, and abuse in the provision and delivery of all health and human services in the state.” It does not apply to just any subject investigation. The Department also suggests that not protecting all OIG investigations would impair the OIG’s ability to obtain sensitive information and carry out its investigative responsibilities, and that persons and companies would feel insecure in reporting to the OIG.  However, information which does relate to fraud in health care services is still confidential. And the other difficulties described by the DSHS are no different than those experienced by all other governmental entities faced with public-information requests.  The Legislature has determined that, unless the information requested is excepted from disclosure, governmental entities must release any such records. As a final point, the Department points out that previous Attorney General letter rulings construed section 531.1021(g) to grant confidentiality to all OIG audits and investigations regardless of the subject matter.  Attorney General concedes that he has applied this section differently in the past but maintains that his position since 2012 has been that section 531.1021(g) does not apply unless it is a health service fraud or abuse situation. The court simply noted that its decision is based on the statutory language, not the AG’s prior decisions. The court reversed the summary judgment for DSHS and rendered judgment for the AG.

If you would like to read this opinion click here.  The panel includes Chief Justice Rose and Justice Goodwin. Chief Justice Rose delivered the opinion of the court. Attorney for the Appellant: Mr. Matthew R. Entsminger.  Attorney for the Appellee: Ms. Ann Hartley.

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