City of Houston v. Houston Chronicle Pub. Co., 01-83-0163-CV

• Citation: 673 S.W.2d 316
• Decision Date: 24 May 1984
• Docket Number: No. 01-83-0163-CV,01-83-0163-CV
• Parties: CITY OF HOUSTON, et al., Appellants, v. HOUSTON CHRONICLE PUBLISHING COMPANY, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 316

673 S.W.2d 316

CITY OF HOUSTON, et al., Appellants, v. HOUSTON CHRONICLE PUBLISHING COMPANY, Appellee.

No. 01-83-0163-CV.

Court of Appeals of Texas Houston (1st Dist.).

May 24, 1984.

James C. Faulkner, II, Asst. City Atty., F.J. Coleman, Jr., City Atty., Houston, for appellants.

W. Robert Brown, Liddell, Sapp, Zively, Brown & Laboon, David Crump, Professor of Law, South Texas College of Law, Houston, for appellee.

Before TOM COLEMAN, Retired C.J., EVANS, C.J., and WARREN, JJ.

OPINION

TOM COLEMAN, Retired Chief Justice.

Upon application of the Houston Chronicle Publishing Company, the trial court granted a writ of mandamus compelling production of certain police department records under the Open Records Act, art. 6252-17a et seq., Tex.Rev.Civ.Stat.Ann. The trial court's order compelled the City of Houston Police Chief Lee P. Brown and Mayor Kathryn J. Whitmire to produce the original and all numbered copies of the Houston police blotter and the show-up sheets for all dates since June 1, 1982. In this appeal from that order, the City contends that the writ of mandamus was prematurely and improperly granted, and that the findings of the trial court, as recited in its judgment, are unsupported by the evidence.

There has been a previous confrontation between the City and the Chronicle over access to police records. See Houston Chronicle Pub. Co. v. City of Houston, 531 S.W.2d 177 (Tex.Civ.App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.), 536 S.W.2d 559 (Tex.1976) ("Chronicle I" ) and Tex.Att'y.Gen. ORD-333 (1982). This particular dispute began when a Chronicle reporter asked the Houston Police Department for information that he desired for his investigation of the operation of the City jail. Although reporters normally had been given access to police records containing the requested information, the City denied the reporter's request. On January 5, 1983, the Chronicle reporter delivered a letter to the Mayor's office asking that she order the Houston Police Department to comply with the Open Records Act and with Chronicle I and direct that he be given access to the following information:

The names of all prisoners booked into the Houston City Jail since June 1, 1982; their ages; their addresses; charges filed, if any; the dates they were in the City Jail.

On January 7, 1983, the request was resubmitted in writing to the Chief of the Houston Police Department as follows:

The Chronicle hereby requests access to the following information maintained by the Houston Police Department: (1) the "Houston Police Blotter" for all dates since June 1, 1982; (2) the "Show-up Sheet" for all dates since June 1, 1982; (3) the "Arrest Sheet" ^* for all dates since June 1, 1982.

The following information should be contained in the records requested: (a) the names of all prisoners booked into the Houston City Jail since June 1, 1982; (b) their ages; (c) their addresses; (d) charges filed, if any; and (e) the dates these persons were in the City Jail.

Both the City and the Chronicle recognize that the matters at issue are governed by the Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Vernon Supp.1982). Section 3 of that Act provides that public information maintained by governmental bodies shall be made available to the public during normal business hours. Section 4 provides that upon application for such information, "the custodian shall promptly produce such information for inspection or duplication, or both." If the information is not immediately available, "the custodian shall certify this fact in writing to the applicant and set a date and hour within a reasonable time when the record will be available." Section 5(b) prohibits the custodian from making any inquiry of an applicant beyond "establishing proper identification and the public records being requested," and requires the custodian to extend "all reasonable comfort and facility for the full exercise of the right granted by this Act."

The City concedes that the items of information requested by the Chronicle were, and remain, public. It contends that the request was for the complete records in which the information could be found. There is no evidence that the City followed any of the above-described legislative directives on processing requests for public information. Therefore, the City failed to comply with the statute.

The City first argues that the trial court should have granted its plea in abatement because the cause of action was prematurely filed. The City contends that sec. 7 of the Open Records Act allowed it to seek a decision from the Attorney General as to whether the information requested by the Chronicle was subject to any applicable exceptions to disclosure under the Act, and that sec. 8 required that the mandamus action be abated until they had received the decision of the Attorney General.

As we read section 7, it provides that the City may request a decision from the Attorney General only if (1) the City considers the information to be within one of the statutory exceptions to disclosure, and (2) there has been no previous determination as to the status of the information. The City was not entitled to withhold the requested information pending an Attorney General opinion in this case because the information requested had already been determined to be public by the 1975 decision of the Fourteenth Court of Civil Appeals in Chronicle I. Moreover, in 1976, the Attorney General issued an opinion specifically setting out the items determined by Chronicle I to be public information, and those items included the information requested in this case. Tex.Att'y.Gen. ORD-127 (1976). The Houston Police Department's own General Order No. 100-3, dated February 1, 1979, expressly authorized Houston police officers to release these same items of information. The Chronicle, therefore, was not required to await yet another pronouncement from the Attorney General before seeking to compel disclosure of the requested information.

The City next argues that the Chronicle's suit should have been abated because the City had not refused the Chronicle's request. The remedy of mandamus authorized in section 8 of the Open Records Act is predicated on a refusal to supply the requested information. The City points out that in January 17, 1983, ten days after receipt of the Chronicle's written request, the Mayor wrote the Chronicle, stating:

I am hereby granting to you, effective immediately, access to such records, subject to the conditions ... [that] personnel of the Houston Police Department have first had an opportunity to review each such record or document, on a case-by-case basis, in order to selectively edit out that information which is excepted from disclosure.

The City contends that this offer on the part of the Mayor indicates a good faith effort on the part of the City to accommodate the Chronicle's request while still protecting the privacy of the individuals arrested, and ensuring compliance with state and federal confidentiality requirements.

Although the City's argument is superficially persuasive, we discern two basic flaws. First, despite the letter's recital of an immediate "grant" of access, it does not state when actual access will be permitted. Even at the time of trial the City was unable to estimate how long it would take for each record to be edited on a case-by-case basis. Therefore, the City's offer falls short of the spirit and intent of the Open Records Act section 4 requirement, "if public information is ... not available ..., the custodian shall certify this fact in writing ... and set a date and hour within a reasonable time when the record will be available."

Second, the City's reservation of the right to review and edit was reasonable only if the requested information was available only from records that also contained non-disclosable information.

The record reflects that the City did not comply with the Chronicle's request, that it did not make a reasonable offer to comply, and that it did not certify to the Chronicle a definite time when it would comply. Accordingly, we hold that the City failed to comply with the provisions of the Open Records Act and that its conduct constitutes a refusal to supply public information under section 8 of the Act. Thus, the trial court did not err in denying the City's plea in abatement.

The City next contends that even if the action was not brought prematurely, it was brought in the wrong forum. Arguing that the subject matter of this case is identical to that litigated in Chronicle I, the City asserts that original jurisdiction of these matters continues to lie with the trial and appellate courts of Chronicle I.

Chronicle I was rendered in a declaratory judgment action and did not directly order the City to furnish information to the Chronicle or to make its records available for inspection. The present action is one for mandamus, seeking specific relief which is authorized by sec. 8 of the Open Records Act. The court in which the action was filed has original jurisdiction in mandamus actions. Tex. Const. art. 5, sec. 8. This is not an action to enforce a previous judgment, although the Chronicle contends that the right to the relief it seeks was established by the former judgment. While a court may enforce its own judgments when the circumstances demand, an independent action or proceeding for enforcement may be brought. 34 Tex.Jur.2d, Judgments, sec. 625. Neither the 151st Judicial District Court of Harris County, nor the Court of Civil Appeals for the Fourteenth District (now the Court of Appeals) has exclusive jurisdiction over this action to compel the City of Houston to make its public records available for inspection and copying. The trial court was not required to dismiss or abate this action.

A writ of mandamus was proper if the City had a legal duty to perform a nondiscretionary act, and refused performance when a demand was made. Stoner v. Massey, 586 S.W.2d...