In re The City of Georgetown

• Citation: 53 S.W.3d 328
• Decision Date: 12 April 2001
• Docket Number: No. 00-0453,00-0453
• Parties: (Tex. 2001) In re The City of Georgetown and George Russell, in his official capacity as Acting City Manager and Officer for Public Information, Relator
• Court: Supreme Court of Texas

Page 328

53 S.W.3d 328 (Tex. 2001)

In re The City of Georgetown and George Russell, in his official capacity as Acting City Manager and Officer for Public Information, Relator

No. 00-0453

IN THE SUPREME COURT OF TEXAS

Argued January 3, 2001

Decided February 15, 2001

Rehearing Overruled April 12, 2001

On Petition for Writ of Mandamus

Justice Owen delivered the opinion of the Court, in which Justice Hecht, Justice Enoch, Justice Hankinson and Justice O'Neill joined.

We are once again called upon to construe the Texas Public Information Act (formerly known as the Texas Open Records Act). The City of Georgetown contends that section 552.022 of the Act does not require it to disclose to the Austin American-Statesman a report prepared by a consulting expert in connection with pending and anticipated litigation. Section 552.022 provides that a governmental body must disclose completed reports or evaluations "unless the category of information is expressly made confidential under other law." Tex. Gov't Code § 552.022(b). The Texas Rules of Civil Procedure are "other law," and consulting-expert reports are within a category of information that is expressly confidential under those rules. Accordingly, the trial court should not have ordered the City to disclose the report, and we conditionally issue a writ of mandamus.

I

The City of Georgetown has been involved in two suits arising from discharges at one of its wastewater treatment plants. In connection with those suits and other anticipated litigation, the City Attorney retained an engineer as a consulting expert to prepare a written assessment of certain parts of the plant. The report was used in connection with the pending litigation, but Bob Hart, who was City Manager at the time, also attached the consulting expert's report, among other documents, to a self-evaluation of his job performance that he prepared for City Council members. The City has since terminated Hart for reasons that it says were unrelated to the expert's report.

While litigation about the wastewater treatment plant was ongoing, the Austin American-Statesman requested the City to release evaluations of Hart and any responses to those evaluations. The City supplied all requested documents except the consulting expert's report. The City followed the procedures for withholding information set forth in section 552.301(d) of the Public Information Act and sought a ruling from the Attorney General. The City asserted that the expert's report was excepted from disclosure under section 552.103(a) of the Act because the report was "information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party." Tex. Gov't Code § 552.103(a). The Attorney General's office issued a written ruling in which it concluded that the expert report did fall within section 552.103(a). However, the ruling further concluded that notwithstanding this exception, the expert's report must be disclosed because it was a "completed report" within the meaning of section 552.022(a)(1) and was not expressly made confidential by "other law."

The City filed suit against the Attorney General under sections 552.324 and 552.325 of the Act, seeking a declaratory judgment that it was not required to disclose the report. The Austin American-Statesman intervened in that suit under section 552.325(a) of the Act, seeking a writ of mandamus compelling disclosure, a declaratory judgment, and attorney's fees. The trial court held a hearing only on whether disclosure of the report was required. At the conclusion of that hearing, the trial court issued a writ of mandamus that directed the City to produce the expert's report. The City promptly filed a petition for a writ of mandamus in the court of appeals, which was denied without an opinion.

The City then petitioned this Court to grant emergency relief and issue a writ of mandamus directing the trial court to vacate its order. We granted a stay of the trial court's order and set the matter for oral argument. We have received amicus briefs in opposition to the City's petition from the San Antonio Express-News, the Texas Daily Newspaper Association, and the Texas Press Association, and in support of the City's petition from the Texas Association of Counties, the Texas Municipal League, the Texas Attorneys Association, the Texas Water Conservation Association, and the Texas Association of School Boards Legal Assistance Fund.

II

Before we consider the merits of the parties' respective contentions, the procedural posture of this proceeding warrants discussion. The trial court in this case was requested to and did issue a writ of mandamus directing the City of Georgetown to release a document. As a general proposition, when rights may be enforced by suit in a trial court, review of determinations by that court are through an appeal to a court of appeals and then petition for review in this Court after entry of a final judgment. See generally Love v. Wilcox, 28 S.W.2d 515, 521 (Tex. 1930); see also Tex. Civ. Prac. & Rem. Code § 51.012; Tex. R. App. P. 53.1. This is so even if the relief sought in the trial court is a writ of mandamus. Love, 28 S.W.2d at 521. "Where these ordinary remedies are complete and adequate, the extraordinary original jurisdiction of the Supreme Court or of the Court of Civil Appeals cannot be successfully invoked." Id.

The trial court in this case, however, chose not to dispose of all issues, and accordingly did not render a final judgment. Instead of resolving whether disclosure was required under the Act at the same time that it resolved the only remaining issues in the case, which were attorney's fee issues, the trial court held a hearing solely on the question of disclosure. The trial court then issued an order directing the City to release the consulting expert's report by noon the following day. Under these circumstances, the City had no adequate remedy by appeal, and mandamus is the appropriate procedural vehicle to seek relief. See Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992).

We turn to the central issue in this case, which is whether the Act requires the City to release its consulting expert's report.

III

"Public information" is broadly defined in the Act as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business . . . 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 § 552.002(a). Public information is to be "available to the public" under section 552.021 with certain exceptions that are found in the Act. One exception is "information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party." Id. § 552.103(a).

The Austin American-Statesman stipulated in the trial court that the document it seeks is covered by the litigation exception embodied in section 552.103(a). The Attorney General does not contend otherwise. Instead, those parties (to whom we will refer collectively as the Statesman) assert that none of the exceptions in Subchapter C of the Act, including the litigation exception, apply to information that must be disclosed under section 552.022(a). Among the categories of information that must be disclosed under that section is "a completed report, . . . evaluation, or investigation" that is not "expressly confidential under other law." Id. § 552.022(a)(1).

Until 1999, the litigation and other exceptions set forth in Subchapter C of the Act applied to all information that otherwise would have to be disclosed, including the categories of information listed in section 552.022. The pre-1999 version of "section 552.022 emphasize[d] that its categories [did] not limit the meaning of the Act's other sections." City of Garland v. Dallas Morning News, 22 S.W.3d 351, 359 (Tex. 2000). In City of Garland, we held that a document was a final report under section 552.022, but we also recognized that exceptions in Subchapter C, such as the deliberative process privilege contained in section 552.111, could except a final report from disclosure. Id. at 359-60.

In 1999, the Legislature amended section 552.022. That section of the Act now provides that the categories of public information it lists are "not excepted from required disclosure under this chapter unless they are expressly confidential under other law," meaning law other than Chapter 552 of the Government Code, which is the Public Information Act. Tex. Gov't Code § 552.022(a) (emphasis added). Since the litigation exception is found in Chapter 552 of the Government Code, that exception does not apply to the categories of information enumerated in section 552.022(a). The Statesman contends that the report at issue is a completed report and that no "other law" expressly makes a consulting expert's completed report confidential.

The City has conceded in this Court that the exceptions set forth in Subchapter C of the Act, including the litigation exception, do not apply to information that must be disclosed under section 552.022(a). Nor does the City dispute that its expert's report is "completed" within the meaning of the Act. The City contends only that Texas Rules of Civil Procedure 192.3(e) and 192.5 are "other law" that expressly make consulting-expert reports confidential. Thus, we are presented with a very narrow issue. When the Legislature amended section 552.022, did it intend "other law" to include the work-product and consulting-expert privileges codified in the rules of procedure? We conclude that it did.

The starting point in construing a statutory provision is the provision itself. Section 552.022 refers to "other law" in both subsections (a) and (b):

(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of...