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

 

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.