You’re Up in My Business – Suing the AG Over an Open Records Ruling
Elected officials often chafe at the intrusiveness of the Texas Public Information Act when requests come in asking, for example, to obtain text messages sent during a city council meeting on a personal cell phone. The answer: “Dad can you bring some “queso” home after the meeting.” Public employees and managers chafe equally because employee reviews and files are subject to a request. The side effect of that transparency is that local governments either don’t do reviews or water them down.
How far does the Act reach for contractors to local governments? Cities either have in-house city attorneys or contract for city attorneys performing the work as a general counsel or for specific assignments. Texas law usually classify city attorneys as officials or officers but not always.
A request was recently made for the monthly invoices sent to the city by the contract city attorney. Since the invoices were written as to not waive attorney client privilege the invoices were produced. However, the second request was for “Copy of Randle Law Firm errors and omissions insurance coverage policy.” Let the breadth of that request wash over you. If an E&O policy must be produced from a contractor, are personnel files, bank statements and any other non-privilege business documents open to disclosure?
A timely letter was written to the AG to determine that the policy did not have to be produced because the city never had possession of it and does not have the authority to ask for it. Why not just respond to the requestor that the city has no documents responsive to your request? One outside attorney for a local ESD (emergency services district) just quit rather than produce it. The Act encourages writing to the AG if “an entity that does not believe it is a governmental body within this definition may make a timely request for a decision from the attorney general under subchapter G of the Act if there has been no previous determination regarding this issue and it wishes to withhold the information”. If we were wrong, then the policy would have to be produced.
The AG initially ruled the policy was a public record saying:
The city represents the submitted information is not public information under the Act because it “does not own the information, have a right of access to the information, or spend or contribute public money for the purpose of writing, producing, collecting, assembling, or maintaining the information.” However, upon review we find the city maintains the submitted information in connection with the transaction of its official business. Accordingly, we conclude the information at issue is subject to the Act.
At this point without a reversal of the opinion the law firm’s other non-privilege records could be subject to being produced or since the policy was being produced as opposed to a certificate of insurance, would allow others to determine whether a claim could be covered or which ones were not covered and sue on those.
Several decisions were made quickly since the right to file suit in the Travis District Court expires in 30 days. (Government Code 552.325) First no billing by the firm to the client would be made after the date of the AG’s letter. The firm would file suit to overturn the ruling and the city would intervene as explained below.
Within the Act’s 30 day limit, however, is a 10-day time limit to file suit to be able to raise an affirmative defense by the city for not producing the records (Government Code 552.353(b)(3) & 353(c)). A petition was filed alleging the policy is not public information, the policy is confidential, and the Act is an impermissible delegation of legislative authority. The city intervened the same day asserting its affirmative defense under Texas Government Code section 552.353(b)(3). Note the Travis County District Clerk is not used to moving that fast. We set the case for trial immediately. The firm filed the intervention to preserve the city’s options and wrote the city that they should get separate counsel, that new counsel could dismiss the intervention, substitute as new counsel or that the intervention would not be actively pursued while the RLO litigated the case all at no cost to the city.
The case settled when the AG realized that there was a previous ruling (OR2017-28501) holding that a law firm’s policy is not a public record because that policy is not specifically pertaining to its representation of the city; is personal to the named law firm; is not in connection with the transaction of any official city business; the policy was not created for the city, or produced for the city, is not maintained for the city and the city does not have a right of access to the information. Warning to the wise, the AG website search function is not comprehensive; use Lexis or Westlaw.
Meanwhile, the requestor filed criminal charges alleging violations of the Act. That public integrity investigation ended when the DA learned that there was a lawsuit pending, filed within 10 days and was settled as far as open records go. Ironically, the DA asked for the AG’s file but was told that the DA needed to file an open records request with the AG! The misuse of public funds allegation was likewise dismissed when the DA learned that the city did not pay for the litigation, although I still think it would be a valid public expenditure.
Sometimes it’s hard to be a boy scout.
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