| Perspectives on Texas

The once-robust Texas Public Information Act lies bleeding. The Texas Supreme Court’s decision this year to deny a newspaper’s petition for review of the opinion of the 1st Court of Appeals in the case of Nehls v. Hartman Newspapers is the latest deep cut. Nehls effectively nullifies the provision of the PIA that says a court shall award attorneys’ fees to a requestor who substantially prevails against a governmental body in a lawsuit to require release of public information. In other words, the requestor must pay a tax in the form of attorneys’ fees to get public information, even where the governmental body does not reasonably rely on recognized legal authority in refusing to release the information.

Each branch of our Texas government has had its share of responsibility for the death of this foundational law of open government in Texas, and the legislative season opens again. However, the denial of petition in Nehls will continue a series of cases by the Texas Supreme Court that have all but killed the PIA, including:

• In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001), which held that the attorney-client privilege is "made confidential by other law" thereby allowing the city to withhold a final report regarding discharges at its wastewater facility.
• City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010), which held that if a governmental body requests clarification of a request for public information, the ten-day period to request an AG ruling or to honor the request resets to day one instead of being tolled.
• Texas Comptroller of Pub. Accounts v. Attorney General, 354 S.W.3d 336 (Tex. 2010), which created a new right to privacy to permit governmental bodies to refuse to release dates of birth in governmental personnel records.
• Texas Dep’t of Pub. Safety v. Cox, 343 S.W.3d 112 (Tex. 2011), which created a new common-law right to withhold “public information” from disclosure under the PIA when disclosure “would create a substantial threat of physical harm,” thereby allowing withholding of vouchers for travel expenses for the governor.
• Boeing Co. v. Paxton, 466 S.W.3d 831 (Tex. 2015), which held that governmental bodies and the third parties that do business with them may withhold any information that would "give an advantage" to a competitor, resulting in the widespread refusal to release even the prices governmental bodies pay for goods and services.
• Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (Tex. 2015), which held that an entity must be “sustained” by public funds, rather than “supported in all or in part” to be found to be a governmental body under the PIA.
• City of Dallas v. Paxton, 509 S.W.3d 247 (2017) (Tex. 2017), which held that a governmental body’s claim that information is subject to the attorney-client privilege is a “compelling reason” to set aside the presumption that public information must be released when the governmental body fails to timely claim the exception in its request for OAG ruling.

The sole exception to the string of defeats for open government at the hands of the Texas Supreme Court since 2001 was the case of Kallinen v. City of Houston, in which the court rejected the city’s argument that a requester must wait for the attorney general to rule before it can file a lawsuit against a governmental body to require release of the requested public information. However, the court of appeals’ opinion in Nehls nullifies Kallinen for any practical purpose. The remedy of a lawsuit to force the governmental body to release information that the court sustained in its opinion in Kallinen is only an abstract ideal unless it is also practically available to the requestor.

The Office of the Attorney General is mandated by the Texas Legislature to defend the public’s interest under the PIA, and in order to withhold public information from a requestor, a governmental body must explain to the OAG which exceptions to the law allow it to refuse to release the requested public information. However, OAG has largely been captured by the governmental bodies, which have become its true constituents. That is why the City of Houston argued so hard in the Kallinen case that the OAG had exclusive jurisdiction over a request, and therefore the requestor couldn’t even sue for release of the information until the OAG had ruled.

And that is why Sheriff Nehls requested a ruling from the attorney general even though he had no good faith argument for refusing to turn over the basic offense report information that the newspaper had requested. When the newspaper sued, the sheriff simply turned over the information rather than even try to defend the lawsuit. Then the sheriff claimed the case was “moot” because the newspapers now had possession of the requested information. The trial court disagreed and awarded the newspaper attorney’s fees, but the 1st Court of Appeals reversed and found the case was moot and the trial court did not have jurisdiction to award fees for having to bring its lawsuit to timely obtain release of the requested information.

That overlooks the fact the newspaper had to pay an attorney to force the sheriff to release the information, basically imposing a use tax upon the newspaper in the form of attorney’s fees. Rather than liberally construing the PIA in favor of requiring release of information, the court’s decision in Nehls liberally construes the PIA in favor of allowing governmental bodies to refuse to release public information. The Texas Supreme Court, by denying Hartman Newspapers’ petition for review, continues its established tradition of doing the same.

Open government is not partisan. It is a conservative ideal for limited government and equally vital if you believe government can be a force to improve our society. However, it must be political. Every person who would hold office in Texas in any capacity must first state his or her position on open government laws. Unless there is a political price to pay for denying Texans their right to an open government, that government will be open only for special interests and the interests of the officeholders themselves, not for the Texas public. The rest of us will be cut out.

Disclosure: Joseph Larsen has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.