LITIGATION UNDER THE PUBLIC INFORMATION ACT

Kimberly Fuchs, Chief, PIA Litigation Section Rosalind Hunt, Assistant Attorney General, PIA Litigation Section

Views expressed are those of the presenter, do not constitute legal advice and are not official opinions of the Office of the Texas Attorney General

THREE MOST COMMON SUITS

I. Declaratory Judgment brought by a Governmental Body (GB).

II. Declaratory Judgment brought by a Third Party (TP).

III. Mandamus brought by the Attorney General (AG) or the requestor.

*All section references are to Chapter 552 of the Texas Government Code.

Step-by-Step Process of PIA Litigation

Step 1: GB receives a request for public information.

Step 2: GB requests a Letter Ruling and mustcomply with section 552.301.

Step 3: AG issues a Letter Ruling and returns the requested information to the GB.

Step 4: To challenge the ruling, GB must file a lawsuit against the AG in Travis County, within 30 days of receipt of the Letter Ruling.

Step 5: GB must notify requestor of lawsuit under section 552.325(b). Requestor has a right to intervene.

I. Suit by a Governmental Body §§ 552.324, .325 (slide 1 of 5)

Step 6: Pursuant to section 552.326, a GB may not raise discretionary exceptions not first raised before the AG.

Step 7: Discovery is usually conducted under Level II. Section 552.322 permits the information

to be discovered only under a protective order.

Step 8: Arrange settings through the Court Administrator's Office at (512) 854-2484 or https://publiccourts.co.travis.tx.us/civil/

New Travis County Local Rules:https://www.traviscountytx.gov/images/courts/Docs/local_rules_civildistrict.pdf

I. Suit by a Governmental Body §§ 552.324, .325 (slide 2 of 5)

Step 9: Summary Judgment Hearing or Trial. Partiesfile requested information with court for in camera inspection under section 552.3221.

Step 10: Final Judgment. A court may award attorneys fees and court costs to a substantially

prevailing party under section 552.323(b).

When the GB voluntarily releases withheld documents to a requestor, rendering the controversy moot, the requestor does not meet the requirement that he “substantially prevailed.” See Hudson v. Paxton, No. 03-13-00368-CV, 2015 WL 739605, at *4 (Tex. App.—Austin 2015, pet. denied) (mem. op.).

I. Suit by a Governmental Body §§ 552.324, .325 (slide 3 of 5)

I. Suit by a Governmental Body §§ 552.324, .325 (slide 4 of 5)

Step 10 continued…

Other Orders:

Agreed Final Judgment. AG must notify requestor of proposed settlement and requestor must have a reasonable time to intervene under section 552.325(c).

OR

Agreed Order of Dismissal for abandoned or withdrawn request under section 552.327.

I. Suit by a Governmental Body §§ 552.324, .325 (slide 5 of 5)

Step 11: Appeals.

Generally, a notice of appeal is due no later than 30 days after the Final Judgment. See Tex. R. App. P. 25-26.

An appellant is entitled to one appeal to a court of appeals, but a further appeal to the Supreme Court of Texas is discretionary.

Step 1: GB receives a request for information.

Step 2: GB requests a Letter Ruling and notifies Third Party under section 552.305. TP may submit arguments for withholding the

information. GB does not have to submit arguments, but must provide a copy of the requested information.

Step 3: AG issues a Letter Ruling and returns the requested information to the GB.

Be sure to keep a copy of the documents marked by the AG.

II. Suit by a Third Party §552.325 (slide 1 of 3)

Step 4: TP must file a lawsuit against the AG in Travis County to challenge the ruling.

Sometimes, the GB is also a defendant.

Step 5: TP must notify requestor of the suit under section 552.325(b). Requestor has a right to intervene.

Step 6: TP often seeks a Temporary Injunction to prevent the GB from releasing the

information before the court rules.

Step 7: Discovery. Pursuant to section 552.322, parties seek a copy of information at issue from GB under a Protective Order.

II. Suit by a Third Party §552.325(slide 2 of 3)

Steps 8 – 10 are the same as GB suit.

Step 8: Settings.

Step 9. Summary Judgment Hearing or Trial.

Step 10: Final Judgment, Agreed Final Judgment, or Agreed Dismissal.

II. Suit by a Third Party §552.325(slide 3 of 3)

Step 1: GB receives a request for information.

Step 2: If a GB: Refuses to request a Letter Ruling, Refuses to supply public information, or Reuses to comply with an AG

determination, then…

The requestor or the AG can file a suit for writ of mandamus against the GB to compel the GB to make the information available.

III. Suit for Writ of Mandamus §552.321(slide 1 of 3)

Step 3: Only the requestor or the AG can file a suit for writ of mandamus against a GB.

Step 4: The requestor must file suit in the county of the GB’s main office. The requestor can sue the GB even if the AG has not issued adecision. See Kallinen v. City of Houston, 462 S.W.3d 25 (Tex. 2015).

The AG must file suit in Travis County unless the suit is against a municipality with a population of 100,000 or less.

Step 5: Discovery. Producing the requested information to the requestor, even under a protective order, may moot the controversy.

III. Suit for Writ of Mandamus §552.321(slide 2 of 3)

Step 6: Consult the Local Rules of the County where the lawsuit is filed for how to make settings.

Step 7: Final Judgment.

Step 8: Pursuant to section 552.323(a), attorney fees are mandatory for a substantially prevailing party unless the governmental body acted in reasonable reliance on a judgment, appellate decision, or attorney general decision.

III. Suit for Writ of Mandamus §552.321(slide 3 of 3)

SUIT FOR DECLARATORY JUDGMENT OR INJUNCTIVE RELIEF An action for declaratory judgment or injunctive relief

may be brought in accordance with section 552.3215 against a GB for violations of the PIA.

An action under this section is in addition to any other civil, administrative, or criminal action provided by the PIA or another law.

COST COMPLAINTS Pursuant to section 552.269, if the GB does not act in

good faith computing costs, a requestor can recover three times the amount of the overcharge.

Other PIA Suits & Penalties (slide 1 of 2)

CRIMINAL VIOLATIONS Section 552.351. Destruction, Removal, or Alteration of

Public Information. Section 552.352. Distribution or Misuse of Confidential

Information. Section 552.353. Failure or Refusal of Officer for Public

Information to Provide Access to or Copying of Public Information. This section also sets out several affirmative defenses.

Other PIA Suits & Penalties (slide 2 of 2)

Questions?

Thank you!

Step-by-Step Process of PIA Litigation