City of Garland v. Dallas Morning News

• Decision Date: 13 April 2000
• Docket Number: No. 98-0617,98-0617
• Citation: 22 S.W.3d 351
• Parties: (Tex. 2000) City of Garland, Texas and Ron Holifield, Petitioners v. The Dallas Morning News, Respondent
• Court: Texas Supreme Court

Page 351

22 S.W.3d 351 (Tex. 2000)

City of Garland, Texas and Ron Holifield, Petitioners v. The Dallas Morning News, Respondent

No. 98-0617

IN THE SUPREME COURT OF TEXAS

Argued March 3, 1999.

Decided January 13, 2000.

Concurring Opinion by Justice Enoch April 13, 2000.

Rehearing Overruled April 13, 2000.

On Petition for Review from the Court of Appeals for the Fifth District of Texas [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Justice Baker delivered a plurality opinion, in which Justice Hankinson, Justice O'Neill, and Justice Gonzales joined.

This case involves interpreting the Texas Public Information Act, Texas Government Code Chapter 552 (the Act), ¹ and presents several issues: (1) whether a governmental body can bring a declaratory judgment action against a requestor of information under the Act; (2) whether the memorandum at issue in this case is public information subject to the Act; (3) whether the Act's agency memoranda exception incorporates the deliberative process privilege, and if so, whether it exempts the memorandum here from required disclosure; and (4) whether the Act entitles parties to a jury trial on the amount of an attorney's fees award.

A majority of the Court concludes that: (1) the Act, as it existed when the request at issue occurred, does not prohibit a governmental body from seeking a declaratory judgment against a requestor of information; (2) the memorandum here is public information subject to the Act; (3) the Act's agency memoranda exception includes the deliberative process privilege but the exception does not exempt the memorandum from required disclosure; and (4) the Act entitles parties to a jury trial on the amount of an attorney's fees award. Accordingly, a majority of the Court affirms the court of appeals' judgment.

I. BACKGROUND

In August 1993, the City of Garland's city manager prepared a memorandum addressed to the City's finance director. The memorandum purported to terminate the finance director and listed the alleged misdeeds that formed the basis for the termination. But instead of sending the memorandum to the finance director, the city manager copied and distributed it to city council members in a closed meeting to obtain their advice about how to handle the matter. After consulting with council members, the city manager decided not to send the memorandum to the finance director. The City and the finance director instead entered into settlement negotiations and the finance director ultimately resigned.

In September 1993, the Dallas Morning News sent the City a request under the Act for all written communications about the finance director's termination or his assignment to new duties. The City did not solicit an opinion from the Texas Attorney General but declined the News's request, claiming that the City did not possess any public records responsive to the request. The City then filed a declaratory judgment action against the News seeking a declaration that the requested documents were not public information subject to disclosure under the Act. The News counterclaimed against the City and the city manager in his official capacity, seeking a writ of mandamus requiring the City to disclose the requested documents. The News also sought attorney's fees. The City eventually released three documents responsive to the News's request but refused to release the memorandum at issue in this case.

The City moved for summary judgment on its declaratory judgment action. The City claimed that the memorandum was not public information under the Act because it was merely a draft memorandum and, thus, was not used in transacting official business. The City argued, in the alternative, that if the memorandum was public information, the memorandum fell within the Act's agency memoranda exception to disclosure because it was part of the City's deliberative process about whether and how to terminate the finance director. See Tex. Gov't Code 552.111. The News filed a cross-motion for summary judgment seeking a writ of mandamus ordering the City to disclose the memorandum. The News contended that the trial court did not have jurisdiction to entertain the City's declaratory judgment action. The News argued that the Act limits a governmental body's judicial remedies to a suit in Travis County district court against the Attorney General to challenge an opinion that the requested information is subject to disclosure. See Tex. Gov't Code 552.353(b)(3). The News also argued that because the City had not requested an Attorney General opinion about whether the memorandum was subject to disclosure, the City had waived any exception from disclosure under the Act and had to make a "compelling demonstration" that the memorandum should be withheld. The News also sought attorney's fees in its summary judgment motion.

The trial court denied the City's motion and granted the News's motion, except on the News's attorney's fees claim. The court concluded that the City's failure to request an Attorney General opinion on whether the information was exempt precluded the City from filing a declaratory judgment action and resulted in an irrebuttable presumption that the information was public. The City requested a jury trial on the News's attorney's fees claim but the News objected to the request. The trial court denied the City's request for a jury trial, and after a bench trial on attorney's fees, awarded the News $45,184.64 in attorney's fees and costs.

The City and the News appealed. The court of appeals reversed the attorney's fees award and remanded the News's attorney's fees claim to the district court for a jury trial. 969 S.W.2d 548, 550. The court of appeals disagreed with the trial court about the consequences of the City's failure to request an Attorney General opinion, but affirmed the district court's judgment on the ground that the memorandum at issue was public information and that the memorandum did not fall under the Act's agency memoranda exception. 969 S.W.2d 548, 550. Both parties filed petitions for review in this Court.

II. APPLICABLE LAW

A. The Texas Public Information Act

In 1973, using the Federal Freedom of Information Act as a model, the Texas Legislature passed what is now known as the Texas Public Information Act. See 5 U.S.C. 552; Acts 1973, 63rd Leg., p. 1112, ch. 424, 1, 14(d); see also Holmes v. Morales, 924 S.W.2d 920, 925 (Tex. 1996); A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995). The Legislature has amended the Act every session since 1973, but its purpose has remained the same--to provide public access "at all times to complete information about the affairs of government and the official acts of public officials and employees." See Tex. Gov't Code 552.001. The Act mandates a liberal construction to implement this policy and one favoring a request for information. See Tex. Gov't Code 552.001; see A & T Consultants, 904 S.W.2d at 675; see also Industrial Found. of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668, 682 (Tex. 1976).

Upon a request for public information, a governmental body's officer for public records must promptly produce public information for inspection, duplication, or both. See Tex. Gov't Code 552.221. The Act defines public information as any information which, "under a law or ordinance or in connection with the transaction of official business, is collected, assembled, or maintained by a governmental body; or for a governmental body and the governmental body owns the information or has a right of access to it." Tex. Gov't Code 552.021. The Act also provides specific categories of public information, including "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body." See Tex. Gov't Code 552.022. But information is not subject to required disclosure if the Act specifically excepts it from required disclosure. See Tex. Gov't Code 552.101-.123; City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); see also Tex. Att'y Gen. ORD-197 (1978).

If a governmental body considers the requested information exempt from disclosure, and there has been no previous determination on the subject, the Act requires the governmental body to submit to the Attorney General written statements about why the information should be withheld and request an opinion from the Attorney General not later than the tenth day after receiving the request. See Tex. Gov't Code 552.301; City of Houston, 673 S.W.2d at 323. If the governmental body does not timely request an Attorney General opinion, the information is presumed public. See Tex. Gov't Code 552.302. If the Attorney General rules that the Act does not exempt the information from required disclosure, the public officer or his agent must make it available to the requesting party or seek a judicial determination that the information does not have to be disclosed.

In addition, a person requesting information or the Attorney General may seek mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to request an Attorney General opinion or refuses to supply public information or information that the Attorney General has determined is public. See Tex. Gov't Code 552.321. In actions brought under sections 552.321, the Act allows a court to assess costs of litigation and reasonable attorney's fees incurred by a plaintiff or defendant who substantially prevails. See Tex. Gov't Code 552.323(a). In exercising this discretion, the court must consider whether the governmental body's conduct had a reasonable basis in law and whether the litigation was brought in good faith. See Tex. Gov't Code 552.323(b).

B. Standard of Review

Because the parties do not dispute the relevant facts, this is a proper case for summary judgment. See Gaines v. Hamman, 358 S.W.2d 557, 563 (Tex. 1962). On cross-motions for summary...