City of El Paso v. Abbott

• Decision Date: 29 August 2014
• Docket Number: No. 03–13–00820–CV.,03–13–00820–CV.
• Citation: 444 S.W.3d 315
• Parties: CITY OF EL PASO, Texas, Appellant v. Greg ABBOTT, Attorney General of Texas and Stephanie Townsend Allala, Appellees.
• Court: Texas Court of Appeals

444 S.W.3d 315

CITY OF EL PASO, Texas, Appellant

v.Greg ABBOTT, Attorney General of Texas and Stephanie Townsend Allala, Appellees.

No. 03–13–00820–CV.

Court of Appeals of Texas, Austin.

Aug. 29, 2014.

George E. Hyde, Lowell F. Denton, Scott M. Tschirhart, for Appellant.

Kimberly L. Fuchs, for Appellees.

Bill Aleshire, for Stephanie Townsend Allala.

Before Chief Justice JONES, Justices PEMBERTON and ROSE.

OPINION

JEFF ROSE, Justice.

We withdraw our opinion and judgment of August 1, 2014, and substitute the following opinion and judgment in their place.

In this interlocutory appeal, appellant the City of El Paso challenges the district court's denial of the City's plea to the jurisdiction in a case brought under the Texas Public Information Act (PIA).¹ The City filed the suit seeking declaratory relief from compliance with an attorney general decision ordering the City to disclose certain information requested by appellee Stephanie Townsend Allala. See Tex. Gov't Code § 552.324 (authorizing suit against attorney general by governmental body that seeks to withhold information ordered disclosed by the attorney general pursuant to PIA). Allala intervened, seeking a writ of mandamus to compel the disclosure of the responsive documents. See id. § 552.321 (waiving sovereign immunity for requestor seeking mandamus to compel disclosure). During the pendency of its suit, however, the City decided to comply in full with the attorney general's decision and produced to Allala the responsive information in its possession. It then filed a plea to the jurisdiction to dismiss Allala's claim, arguing that it had complied with Allala's request in full. The Attorney General did not oppose the City's plea, but Allala did, and after two hearings on the issue, the district court denied the City's plea to the jurisdiction. For the reasons explained in detail below, we will reverse the district court's order denying the City's plea, render judgment that the district court lacks jurisdiction, and dismiss Allala's claim for mandamus relief.

Background

In September and October 2012, Allala made two public-information requests to the City of El Paso for various communications regarding public business of the City between the mayor, council representatives, the city manager, or some combination thereof, including any public-business communications that may have been conducted on the personal email accounts of these individuals. The City, following the procedures set forth in the PIA, see id. §§ 552.301–.309, asked the attorney general to issue advisory opinions regarding Allala's request, including whether the private emails responsive to Allala's requests were public information and, if so, whether those emails were excepted from disclosure under the PIA. The City argued in its requests that any responsive emails held on individuals' private email accounts cannot be considered “public information” under the PIA's then-current definition of that term because the emails were not in the City's possession and were inaccessible to the City.² In one opinion addressing both requests, the attorney general reasoned, in relevant part, that because the private emails requested by Allala “relate[ ] to the official business of a governmental body and [are] maintained by a public official or employee of the governmental body,” the emails are within the scope of the PIA. See Tex. Att'y Gen. OR2012–19216. The location of public information, the attorney general explained, does not affect its status as public information. See id. The attorney general determined further that the requested emails were not subject to any exceptions to disclosure asserted by the City and, accordingly, informed the City that it must release the withheld information. See id.

In response to the attorney general's decision, the City filed suit in Travis County seeking declarations that private emails are not “public information” under the PIA, private emails are excepted from disclosure under the PIA, the City “has compelling reasons to keep the documents at issue except [ed] from public disclosure,” and the City is not required to release private emails. See Tex. Gov't Code § 552.324 (authorizing declaratory-judgment action against attorney general for relief from compliance with a decision ordering it to disclose certain information). Specifically, the City argued that the personal papers, emails, and effects of local-government officials and employees that are held independently from the governmental body are not subject to “open records searches” and do not meet the statutory definition of public information, thus the information is inaccessible to the City and not subject to the PIA. The attorney general filed an answer opposing the City's arguments, and Allala intervened in the case, seeking an order of mandamus against the City to disclose all of the public information that she had requested. See id. 552.321 (authorizing mandamus action by requestor where the governmental body “refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure”).

During the pendency of the City's declaratory-judgment action, the legislature amended the PIA's definition of “public information” to codify, the parties contend, the attorney general's long-held position that public information includes documents or other items created “by an individual officer or employee of a governmental body in the officer's or employee's official capacity and the information pertains to official business of the governmental body,” regardless of where that information is located. See Act of May 24, 2013, 83d Leg., R.S., ch. 1204, § 1, sec. 552.002, 2013 Tex. Gen. Laws 3011, 3011–12 (codified at Tex. Gov't Code § 552.002 ).³ According to the City, certain other matters affecting the City's efforts to withhold certain of the requested information had ceased to exist during the pendency of its PIA suit. Accordingly, the City decided to withdraw its challenge to the attorney general's decision and, on September 16, 2013, released to Allala all remaining responsive documents that were in its possession.

After releasing the documents, the City filed a plea to the jurisdiction, arguing that its release of the requested documents in its possession had mooted all claims, thus depriving the district court of jurisdiction, and that its case should be dismissed accordingly. In support of its plea to the jurisdiction, the City attached the affidavit of its city manager, Joyce Wilson, who testified that after conducting “a diligent search for information,” the City had gathered and turned over “all [responsive] information accessible to the city or within the city's control,” including information voluntarily disclosed by current and former city officials in response to Wilson's request for such information.

The attorney general did not oppose the City's plea. Allala, however, filed a response to the City's plea objecting to Wilson's affidavit and requesting a continuance to allow Allala to conduct discovery related to both the City's plea and to the merits of Allala's mandamus request. Specifically, Allala argued that before dismissing her petition as moot based solely on the City's assertion that it has provided all the information in its possession, she should be allowed to depose certain of the individuals identified in her information request to determine whether those named individuals have records responsive to her request—i.e., emails relating to public business located on private email accounts—that were not provided to the City or disclosed pursuant to the attorney general's decision. Allala pointed out, supported by her own affidavit, that the City had failed to produce certain attachments for the emails that it had produced and that, as shown by the City's responses to requests for admission, the City had redacted personal email addresses from certain emails. Allala also attached an email, provided to Allala by the City, from city councilman Steve Ortega to Wilson, in which Ortega stated that he would “not be turning over any of [his] private emails.” Finally, Allala asserted that, regardless, the City's evidence in support of its plea to the jurisdiction was not sufficient to prove mootness as a matter of law.

At the first hearing on the City's plea to the jurisdiction, the district court sustained Allala's objection to Wilson's affidavit,⁴ but decided to postpone a decision on the City's plea to allow Allala time to conduct “limited discovery.” A few weeks later, the City filed a supplemental plea to the jurisdiction, which in addition to addressing Allala's contentions regarding missing attachments, included three affidavits detailing the City's efforts in response to Allala's request for information and asserting that all responsive information possessed by or accessible to the City had been produced to Allala. At the second hearing on the City's plea, the parties resolved the issue relating to the missing email attachments, but Allala maintained her position regarding the redacted email addresses and the need for additional discovery to determine whether any responsive information existed outside the physical possession of the City. Allala did not offer any additional evidence to support her opposition to the City's plea. Counsel for former city council member Steve Ortega argued at the hearing that his client had since decided to produce responsive information and purported to offer an affidavit attesting to that decision, but that affidavit does not appear in the record before this Court. After taking the matter under advisement, the district court denied the City's plea to the jurisdiction, allowing Allala's claim for relief to proceed. It is from this interlocutory order that the City now appeals.

Standard of review

A plea to the jurisdiction challenges a trial court's authority to decide the subject matter of a specific cause of...