City of Garland v. Dallas Morning News

• Decision Date: 13 May 1998
• Docket Number: No. 05-95-01350-CV,05-95-01350-CV
• Citation: 969 S.W.2d 548
• Parties: CITY OF GARLAND, Texas, and Ron Holifield, Appellants, v. THE DALLAS MORNING NEWS, Appellee.
• Court: Texas Court of Appeals

Page 548

969 S.W.2d 548

CITY OF GARLAND, Texas, and Ron Holifield, Appellants, v. THE DALLAS MORNING NEWS, Appellee.

No. 05-95-01350-CV

Court of Appeals of Texas,

Dallas.

May 13, 1998.

Mark E. Dempsey, Assistant City Attorney, Garland, for Appellants.

Paul C. Watler, Stephen E. Fox, Jenkens & Gilchrist, P.C., Dallas, for Appellee.

Before the Court En Banc.

OPINION

KINKEADE, Justice.

City of Garland, Texas ("Garland") and Ron Holifield ("Holifield") appeal the judgment granted in favor of The Dallas Morning News ("the News") in this lawsuit concerning the Texas Open Records Act ("the Act"). In three points of error, appellants contend that the trial judge erred by: (1) granting the News's motion for summary judgment; (2) denying appellants' motion for summary judgment; and (3) denying appellants' request for a jury trial on the issue of attorney's fees. We overrule points of error one and two and affirm the portion of the summary judgment that the record is public but on grounds different from those articulated by the trial court. We sustain point of error three, and reverse and remand for a new trial on attorney's fees.

FACTUAL BACKGROUND

In August 1993, Garland's city manager, Ron Holifield, sought to remove James Hager from his position as Garland's director of finance. Holifield prepared a draft memorandum concerning a possible resolution of Hager's employment ("the Memorandum"). On August 31, 1993, the Memorandum was considered at a closed executive session of the Garland City Council attended by the Garland city attorney. Following this meeting, Holifield decided not to pursue the strategy outlined in the Memorandum.

On September 13, 1993, the News sent Garland a letter requesting under the Texas Open Records Act "[a]ll written communications (including, but not limited to, memos ... ) concerning Mr. Hager's termination as Finance Director and/or his assignment to new duties." On September 23, 1993, Garland sent the News a letter declining the request on the basis that there were no documents that constituted public information or that were not excepted from disclosure under the Act. The News replied to Garland's letter, stating that Garland's reason was inadequate under the Act. The News further pointed out that Garland had not sought an attorney general's opinion within ten days of the request, thereby creating the presumption that the requested documents were public information. See TEX. GOV'T CODE ANN. §§ 552.301-.302 (Vernon 1994). The News threatened to bring a mandamus action if Garland did not turn over the documents.

On October 5, 1993, Garland filed suit in district court seeking a declaration that the requested documents were not subject to disclosure under the Act. Garland submitted to the court, in camera, four documents it considered responsive to the request, including the Memorandum. The News counterclaimed against Garland and against Holifield in his official position as city manager and statutory custodian of records. In the counterclaim, the News sought a writ of mandamus for disclosure of the documents and attorney's fees. During the course of the litigation, Garland released three of the four documents submitted in camera, conceding the three documents were no longer covered by the asserted litigation privilege because Garland had settled its dispute with Hager. Garland and the News filed motions for summary judgment based on the Memorandum, the only remaining document. Holifield did not file a motion for summary judgment, but joined Garland's response to the News's cross-motion for summary judgment.

In its motion for summary judgment, Garland alleged that it was entitled to summary judgment because the Memorandum is: (1) not a "public record" because it was not collected, assembled, and maintained in connection with the transaction of official business; and (2) excepted from disclosure under the Act. The News, on the other hand, alleged in its motion for summary judgment that: (1) Garland, as a governmental body, was not entitled to use a declaratory judgment action to obtain relief under the Act; (2) Garland failed to request an attorney general's opinion and, therefore, the requested document was presumptively public information and subject to disclosure under the Act; and (3) Garland failed to make a compelling demonstration that any of its claimed exceptions preclude public disclosure. Therefore, according to the News, it was entitled to a writ of mandamus compelling appellants to produce the document.

The trial judge denied Garland's motion for summary judgment and granted the News's motion. The court found that Garland's failure to obtain an attorney general's opinion within ten days as to whether the records were subject to an exception to disclosure under the Act: (1) prohibited Garland from filing the subject declaratory judgment action; (2) constituted a failure to exhaust administrative remedies; and (3) caused the document in question to become public information. Accordingly, the trial court granted a writ of mandamus compelling Garland and its custodian of records to release and produce the requested document to the News. Because there were fact issues about the amount of attorney's fees, the trial judge denied the News's motion on the issue of attorney's fees.

Garland requested a jury trial on the issue of attorney's fees. The News objected to a jury trial, and the trial judge sustained the objection. After hearing evidence, the trial judge ordered Garland to pay the News $45,184.64 in attorney's fees and costs through trial, as well as additional attorney's fees in the event of an appeal. The trial court did not assess costs and attorney's fees against Holifield. This appeal followed.

SUMMARY JUDGMENT

In point of error one, appellants contend the trial court erred in granting the News's motion for summary judgment. In point of error two, appellants contend the trial court erred in denying their motion for summary judgment. Appellants argue these two points together. Likewise, we will address the points of error together.

Standard of Review

We review a summary judgment using the following well-known procedures:

1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.

2. In deciding whether a disputed material fact issue exists, we accept as true evidence favorable to the nonmovant.

3. We indulge in every reasonable inference and resolve any doubts in the nonmovant's favor.

See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). When, as here, both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex.1993); Howard v. INA County Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex.App.--Dallas 1996, writ denied). Neither party can prevail because of the other's failure to discharge its burden. Guynes, 861 S.W.2d at 862; Howard, 933 S.W.2d at 216. When both parties move for summary judgment, we consider all the evidence accompanying both motions in determining whether to grant either party's motion. Howard, 933 S.W.2d at 216; Benchmark Bank v. State Farm Lloyds, 893 S.W.2d 649, 650 (Tex.App.--Dallas 1994, no writ). When the grounds on which the trial court granted summary judgment are incorrect, it is appropriate to consider grounds for summary judgment on which the court did not specifically rule, if they have been properly preserved. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996).

Texas Open Records Act

The Texas Open Records Act provides public access to governmental documents. See generally Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 594-607, amended by Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2-25, 1995 Tex. Gen. Laws 5127, 5127-42 (codified at TEX. GOV'T CODE ANN. §§ 552.001-.353 (Vernon 1994 & Supp.1998)). ¹ Section 552.021 of the government code provides that information is public information if, in connection with the transaction of official business, it is collected, assembled, or maintained by a governmental body. See TEX. GOV'T CODE ANN. § 552.021(a) (Vernon 1994). If information is public, it must be made available to the public during normal business hours of the governmental body. Id. § 552.021(b). The act contains twenty-three exceptions to the requirements of section 552.021 for various categories of information. See id. §§ 552.101-.123.

If the governmental agency receives a written request for public information that it considers as falling under one of the statutory exceptions to disclosure, it may provide the information or, if it chooses not to disclose the information, it may request the attorney general to determine whether the information is statutorily excepted from disclosure. See id. § 552.301. If the governmental body fails to request the attorney general to review the information, then the information "is presumed to be public." Id. § 52.302. Once requested information is presumed to be public information because of the governmental body's failure to make a timely request for the attorney general's opinion, the party requesting the information may seek a writ of mandamus to compel release of the information. See id. § 552.321.

The News's Motion for Summary Judgment

The News filed its motion requesting the trial judge grant summary judgment, dismiss appellants' declaratory judgment action, and grant a writ of mandamus compelling production of the requested documents. In the motion, the News contended it was entitled to summary judgment because, among other things, (1) Garland failed to seek a determination by the attorney general, thus creating a presumption that the information was public; and (2) Garland failed to produce evidence of a compelling reason that the information should not be released to the public.

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