Aim Media Tex. v. City of Odessa

Decision Date16 March 2023
Docket Number11-22-00052-CV
CourtCourt of Appeals of Texas

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J. (Williams, J., dissenting with opinion)



This appeal concerns a request for mandamus relief under the Texas Public Information Act.[1] AIM Media Texas, LLC d/b/a The Odessa American is the daily newspaper for Odessa and surrounding communities (hereinafter the "OA"). The OA filed suit against the City of Odessa (the City) seeking a writ of mandamus under Section 552.321. See TEX. GOV'T CODE ANN. § 552.321 (West 2020). The City is the sole defendant named in the OA's suit.

This is the second appeal that we have considered in the underlying suit. In the first appeal, the City appealed the trial court's denial of its plea to the jurisdiction that challenged whether the OA had adequately pleaded a cause of action for mandamus relief under the TPIA. City of Odessa v. AIM Media Texas, LLC, No. 11-20-00229-CV, 2021 WL 1918968, at *3 (Tex. App.-Eastland May 13, 2021, no pet.) (mem. op.) (AIM Media I). We determined that the newspaper had adequately pleaded a claim for mandamus relief. Id.

After the first appeal, the City filed a second plea to the jurisdiction predicated on the City's assertion that the OA's cause of action is now moot because the City "has produced all the responsive documents which are relevant to this lawsuit." The appeal now before us arises from the trial court's order granting the City's second plea to the jurisdiction. At the time of dismissal, the trial court also denied the OA's motion for summary judgment. For the reasons detailed below, we affirm.

Background Facts

As a part of its operations, the OA provides its readers with information regarding crimes and alleged criminal activity occurring in the City of Odessa. The OA, in turn, relies on the City to act promptly in producing public information relating to such crimes and criminal activity.

The dispute between the parties appears to have originated after a mass shooting that occurred in Odessa on August 31, 2019. Before the shooting, the City regularly released public documents, including police reports and probable cause affidavits, within a few hours after they were generated. The OA has since experienced increased delays in connection with the City's fulfillment of its requests for public information.

The OA alleges-and the City does not dispute-that the increased delays are a result of a new policy and practice in which the city attorney reviews all requests for information that are submitted by the OA. A substantial number of those requests are then forwarded to the Texas Attorney General for review pursuant to the terms of the TPIA. See GOV'T § 552.301 (requiring a governing body to ask for a decision from the attorney general when it receives a request for information that it wishes to withhold from public disclosure). Our review of the Attorney General's Open Records Decisions has revealed that the City has made more than 600 requests for rulings over the last three years.

The OA's pleadings describe several examples of alleged unlawful delay in releasing information on the part of the City, and the parties have entered into a stipulation that describes the timeframes for the Attorney General requests and the production of information in connection with those examples. The stipulations reflect the following:

• Information concerning the mass shooting was first produced 138 days after the initial request. The City requested an Attorney General opinion in connection with this request, and the 138-day delay includes a 68-day period in which the Attorney General's opinion was pending.
• A request for information concerning the arrest of Fabian Polvan was made on December 2, 2019. The City produced some of the requested information 14 days later, and the requested information was fully produced 92 days following the request. The City requested an Attorney General opinion in connection with this request, and the 92-day delay included a 72-day period in which the Attorney General's opinion was pending.
• A request for information concerning a probable cause affidavit supporting the arrest of Abel Carrasco was made on December 23, 2019. The City produced the requested information 74 days later. This 74-day delay also includes a 56-day period in which the Attorney General's opinion was pending.
• A request for information concerning the arrest of Lillie Pherguson was made on January 6, 2020. The City produced some of the requested information on the following day, and the requested information was fully produced 44 days following the request. This 44-day delay included a 36-day period in which the Attorney General's opinion was pending.
• A request for a police report and probable cause affidavit concerning the arrest of Robert Serrano Franco was made on June 25, 2021. The charges against Franco included four counts of aggravated assault against a public servant two counts of aggravated assault with a deadly weapon accident involving injury, and evading arrest or detention with a vehicle. All requested information in connection with this incident was provided within the next 5 days, and some of the requested information was provided immediately.
• The stipulation also includes a description of a request for information concerning a 2021 audit of the City's finances. This information was produced 8 days later.

It is undisputed that, as of the date the trial court signed an order of dismissal in this cause, the City had provided all of the public information and documents that were responsive to the OA's requests that were identified in the stipulations. It is also undisputed that all of the requested information was produced voluntarily.

"Basic Information"

Under the TPIA, a governing body such as the City is generally required to make public information available for inspection. See GOV'T § 552.021. Among other things, such information includes "a completed report" or "investigation." Id. § 552.022(a)(1). Insofar as law enforcement activities are concerned, information concerning the detection, investigation, and prosecution of crimes is excepted from this general rule. Id. § 552.108(a). Likewise, the internal records and notations of law enforcement agencies and prosecutors are excepted. Id. § 552.108(b). However, the Act explicitly recognizes that "basic information about an arrested person, an arrest, or a crime" does not fall within these exceptions. Id. § 552.108(c).

The genesis of what constitutes "basic information" as that term is used in Section 552.108(c) is the landmark decision in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177, 187 (Tex. App.-Houston [14th Dist.] 1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976) (per curiam); see City of Carrollton v. Paxton, 490 S.W.3d 187, 197-200 (Tex. App.-Austin 2016, pet. denied) (discussing the historical significance of Houston Chronicle). In Houston Chronicle, the Fourteenth Court of Appeals found that, as a matter of right under the First Amendment to the United States Constitution, the newspaper was entitled to certain "front page" information from a law enforcement offense report, including (1) the offense committed, (2) location of the crime, (3) identification and description of the complainant, (4) the premises involved, (5) the time of the occurrence, (6) property involved, (7) vehicles involved, (8) description of the weather, (9) a detailed description of the offense in question, and (10) the names of the investigating officers. 531 S.W.2d at 186-87. As noted in City of Carrollton, the holding of Houston Chronicle "quickly became enshrined in Attorney General open-records decisions." 490 S.W.3d at 199. As of the date of this opinion, the Office of the Texas Attorney General has cited Houston Chronicle over 73,000 times in its open-records decisions. Further, in a recent open-records decision involving a request by the City of Odessa, the Attorney General's Office noted as follows with respect to the effect of Houston Chronicle:

Section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). Basic information refers to the information held to be public in the Houston Chronicle decision. See 531 S.W.2d at 186-88; Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle decision). Thus, with the exception of basic information, which the city must release, the city may withhold Exhibit C under section 552.108(a)(1) of the Government Code.

Tex. Att'y Gen. OR2022-39237. Thus, the City is incorrect in its assertion that the holding in Houston Chronicle is of little significance.

Similarly the OA's complaints are primarily focused on the City's promptness in producing the "basic information" described in Houston Chronicle and the TPIA. Because it is public information under the Act, such information must be produced "promptly," which means "as soon as possible under the circumstances, that is, within a reasonable time, without delay." Gov't § 552.221(a); see AIM Media I, 2021 WL 1918968, at *3. Similarly, the Houston Chronicle court held that "[t]he constitutionally protected access of the press and public" to the basic information described therein "should be made immediately available at a convenient central location to meet the need of the public's right to know." 531 S.W.2d at 187. In the case before us, the OA essentially contends...

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