PIA case remanded because mayor and city secretary did not do a search of personal emails or phones for public business

James E. Horton v. Ron Welch, Individually and Ron Welch, as Mayor of the City of Caney City, Texas, 12-19-00381-CV, (Tex. App – Tyler, April 8, 2020)

This is a Public Information Act (“PIA”) case where the Tyler Court of Appeals overruled an order granting the City and mayor’s summary judgment. [Comment: this case was filed prior to the recent PIA statutory changes creating temporary custodians.]

Horton sent two separate requests for numerous records to the City and Mayor Welch (seeking txts, emails, etc.). After Horton paid the required fees, the City, through Welch, gave him what it claims is all the requested records. Horton filed a suit asserting that Welch (as custodian) did not fully comply with his request and asking the trial court to issue a writ of mandamus. Welch filed a no-evidence motion for summary judgment arguing that he provided Horton with all requested records and documents and Horton has no evidence to the contrary. Welch also filed a traditional motion for summary judgment.  The trial court granted Welch’s motions and Horton appealed.

The PIA provides a statutory remedy of mandamus to a requestor when the governmental body refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure. The traditional MSJ was accompanied by an affidavit the city secretary performed a “painstaking investigation” and review of the City’s files and produced all responsive records. The City asserts it is not in possession of any additional records. However, the testimony established the city secretary and mayor did not examine personal accounts upon which council members could have utilized. Under the PIA “is not dependent on whether the requested records are in the possession of an individual or whether a governmental body has a particular policy or procedure that establishes a governmental body’s access to the information.” The PIA provides no guidance regarding the efforts a governmental body must take to locate, secure, or make available the public information requested. However, since the testimony established the mayor and city secretary did not look in private accounts which could have contained such information, a fact issue exists regarding whether or not all responsive information was provided.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Reversed and Remanded. Memorandum Opinion by Justice Hoyle. Docket page with attorney information can be found here.