Texas Dept. of Public Safety v. Gilbreath
| Decision Date | 25 November 1992 |
| Docket Number | No. 3-92-024-CV,3-92-024-CV |
| Parties | TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. James GILBREATH, Appellee. |
| Court | Texas Court of Appeals |
Dan Morales, Atty. Gen., Jennifer S. Riggs, Asst. Atty. Gen., Austin, for appellant.
Matthew L. Trevena, Law Offices of Lucius D. Bunton, Austin, for appellee.
Before CARROLL, C.J., and JONES and KIDD, JJ.
The Texas Department of Public Safety ("the DPS") appeals the judgment of the trial court issuing a writ of mandamus ordering the DPS to produce certain information James Gilbreath requested under the authority of the Texas Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (West Supp.1992) 1 ("the Act"). We will affirm the judgment of the trial court.
This dispute requires this Court to interpret sections 3(a)(11) and 8(a) of the Act, which provide as follows:
Sec. 3. (a) All information collected, assembled, or maintained by or for governmental bodies ... in connection with the transaction of official business is public information and available to the public during normal business hours of any governmental body, with the following exceptions only:
* * * * * *
(11) inter-agency or intra-agency memorandums or letters which would not be available by law to a party in litigation with the agency;
* * * * * *
Sec. 8. (a) If a governmental body refuses to request an attorney general's decision as provided in this Act, or to supply public information or information which the attorney general has determined Art. 6252-17a, §§ 3(a)(11), 8(a).
to be a public record, the person requesting the information or the attorney general may seek a writ of mandamus compelling the governmental body to make the information available for public inspection.
The facts are not in dispute. On February 5, 1991, pursuant to the Act, James Gilbreath requested information from the Texas Department of Public Safety that it relied upon in not selecting Gilbreath for the position of Texas Ranger in November 1989 and November 1990. Gilbreath requested disclosure of all documents pertaining to his application, testing, interview and consideration for selection, including the subjective, narrative evaluations made specifically as a result of Gilbreath's oral interview. Through a letter dated February 15, 1991, the DPS provided a portion of the requested information, but told Gilbreath that it was withholding certain other information until it received an opinion from the Texas Attorney General's Office regarding whether the information was subject to disclosure.
On March 26, 1991, the attorney general issued an informal letter ruling, Texas Att'y Gen. OR91-149 (1991), advising the DPS that background evaluations and subjective evaluations of an applicant's performance before an interview board were exempt from disclosure under section 3(a)(11) ("Exemption 11") of the Act, and that the test questions used by the DPS in its evaluation of Texas Ranger candidates were exempt from disclosure under section 3(a)(22). 2 Accordingly, the DPS declined to release the remainder of the requested information.
Dissatisfied with the attorney general's determination, on May 2, 1991, Gilbreath sought a writ of mandamus pursuant to section 8(a) of the Act to compel disclosure of the withheld information. Gilbreath sought the subjective evaluations that were completed during his oral interviews and any background evaluations that the DPS relied upon during the interviews. Gilbreath also sought recovery of his costs and reasonable attorney's fees.
The DPS opposed issuance of the writ. It argued that the trial court lacked jurisdiction over the dispute because Gilbreath had no statutory authority to file suit. Furthermore, the DPS asserted that mandamus would be an improper remedy because it had neither violated a clear legal duty to release the information nor abused its discretion in refusing to supply the information. The case was tried before the trial court on stipulated facts. Significantly, stipulated fact seven stated: "[i]f the Department of Public Safety were involved in civil litigation over James Gilbreath's application, the information withheld would be available through civil discovery." The parties also stipulated to the amount of reasonable attorney's fees recoverable if Gilbreath prevailed on his petition.
After reviewing the entire record, the trial court found that Gilbreath had exhausted his administrative remedies under the Act and that the DPS had failed to supply public information. The court found this action to be a violation of the agency's clear duty to produce the information pursuant to the Act. Therefore, the trial court issued a writ of mandamus ordering the DPS to disclose the withheld information and to pay Gilbreath's reasonable attorney's fees. The DPS appeals the order of the trial court.
The DPS brings three points of error. First, it challenges the jurisdiction of the trial court and asserts the trial court had no authority to issue a writ of mandamus in this dispute. Second, the DPS contends that, even if the trial court had authority to issue the writ, mandamus was not proper because the agency did not violate a "clear duty" imposed by law or abuse its discretion in relying on the attorney general's open records decision. Third, it maintains that the trial court's interpretation of Exemption 11 is flawed.
In its first point of error, the DPS challenges the trial court's jurisdiction and claims the Act does not authorize mandamus when the attorney general has ruled the information is not a public record. The DPS contends that once the attorney general makes a decision as to the classification of information under the Act, that decision may not be challenged in a court of law. We disagree.
Section 8(a) confers upon the trial court authority to issue a writ of mandamus in three circumstances: where a governmental body (1) refuses to request an attorney general's decision as to whether information is public record, (2) refuses to supply public information, or (3) refuses to supply information that the attorney general has determined to be a public record. Art. 6252-17a, § 8(a). The fact that the attorney general determined this information was not a public record did not preclude Gilbreath from seeking a trial court's determination as to whether the information sought was public information within the meaning of section 3(a). Although it may appear that the terms "public information" and "public record" are interchangeable, they have distinct meanings. City of Houston v. Houston Chronicle Publishing Co., 673 S.W.2d 316, 322-23 (Tex.App.--Houston [1st Dist.] 1984, no writ).
A person seeking disclosure of information usually begins the process by requesting the information from the governmental body directly. If it is public information or information that the attorney general has previously determined to be a public record, the governmental body must disclose it. If the agency refuses to do so, the person requesting the information may initiate a mandamus proceeding to compel disclosure.
Where there is a dispute as to the nature of the information, the person seeking disclosure has two alternatives. He may either compel the governmental body to request an open records decision from the attorney general or he may simply seek disclosure of the information that he believes is public information through a mandamus proceeding in a court of law. If the latter form of relief is sought, the trial court determines whether the information requested is public information subject to disclosure under the Act. As we read the statute, there is no requirement that the attorney general issue an open records decision before a person may seek a mandamus to compel the disclosure of public information.
If the agency has requested an open records decision (on its own initiative or because of a mandamus proceeding) and the attorney general decides that the information is a public record, the agency must disclose the information. However, if the attorney general decides that the information is not a public record, the person seeking such information is not precluded from petitioning the court for a writ of mandamus. In such a case, the person may seek a judicial proceeding to determine whether the information is subject to disclosure. See, e.g., Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex.Civ.App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex.1976). That was the situation in which Gilbreath found himself, and thus it was proper for him to petition for a writ of mandamus.
Having determined that Gilbreath's mandamus proceeding is proper, we are asked to address the argument that Gilbreath's suit constitutes an appeal of an adverse attorney general open records decision, and that such an appeal is prohibited. The DPS maintains that section 8(a) does not authorize a private citizen to file suit to compel disclosure of information that the attorney general has determined is not a public record. We disagree. Under such an interpretation of the Act, an adverse attorney general's decision would never be subject to judicial review. We believe the clear legislative intent of the Act reflects a contrary view. Just as the refusal of the attorney general to render a decision under the Act is subject to review by the courts, Houston Chronicle Publishing Co. v. Mattox 767 S.W.2d 695, 698 (Tex.1989, orig. proceeding), once the attorney general renders a decision under the Act, that decision is also subject to judicial review.
Gilbreath sought mandamus to compel the DPS to disclose information he considered to be public within the meaning of the Act. Because he has the right to do this pursuant to section 8(a), we overrule point of error one.
In its third point of error, the DPS contends the trial court erred in...
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