The Intersection of the TPIA and Discovery

Ways Litigants Can or Cannot Use the TPIA  in Connection with Civil Discovery

Intersection

The Texas Public Information Act (“TPIA”) sets forth the requirements for citizens to obtain information from governmental bodies. See Tex. Gov’t Code § 552.001 et seq. TPIA requests can range from public servant salary information to email communications. Indeed, citizens make requests for public information in Texas frequently, with the Attorney General’s office posting more than 23,000 letter rulings on public information requests in 2014 alone. See https://www.texasattorneygeneral.gov/open/index_orl.php?ag=50abbott&fmt=pdf&list=2014. And notably, the Attorney General only issues a letter ruling when a governmental body requests it, so the actual number of TPIA requests is much greater. This article examines the intersection of the TPIA and discovery—how the TPIA can or cannot be used in connection with civil discovery.

I.     The Texas Public Information Act empowers citizens to obtain information regarding government actions.

The Texas Public Information Act was enacted in 1973, following the Sharpstown scandal where several of Texas’s highest level political officials were involved in a securities fraud. This scandal prompted the State to implement open government legislation. Texas Government Code Section 552.021 provides:

Public information is available to the public at a minimum during the normal business hours of the governmental body.

Public information is defined as:

Information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:

(1)        by a governmental body;

(2)        for a governmental body and the governmental body:

(A) owns the information;

(B) has a right of access to the information; or

(C) spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information; or

(3)        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.

Tex. Gov’t Code § 552.002(a). The statutory language is broad and if a governmental body wishes to withhold information from the public, it must show that the information falls within an enumerated exception. See Id. at §§ 552.101-156. From here, the TPIA and discovery can intersect in two ways. The first scenario is when a private party is engaged in litigation with a governmental body and seeks information through a public information request, instead of, or ancillary to, discovery. The second scenario is when a public information act request has been rejected, appealed to the district court, and through discovery, the requesting party seeks the same information sought through a public information act request.

II.     The litigation exception to the TPIA limits disclosure of information related to current and pending litigation.

The first scenario is the most likely for litigants to face. A party to litigation may ask themselves, why go through the formalities of traditional discovery requests, which could be delayed for any number of reasons that tend to occur in litigation, when the TPIA is available? And, a party contemplating litigation would be well served to consider the TPIA as an option for prelitigation information gathering. However, once in discovery, the TPIA becomes a limited tool for obtaining information.

The “litigation exception” to the TPIA allows a governmental entity to withhold information:

(1) relating to litigation of a civil or criminal nature or settlement negotiations, to which the state or a political subdivision is or may be a party or to which an officer or an employee of the state or a political subdivision, as a consequence of the person’s office or employment, is or may be a party; and

(2) that the attorney general or the attorney of the political subdivision has determined should be withheld from public disclosure.

University of Texas Law School v. Texas Legal Foundation, 958 S.W.2d 479, 481 (Tex. App.—Austin 1997, no pet.) (citing Tex. Gov’t Code § 552.103) (emphasis added)). “The Attorney General interprets this provision as excepting: (1) information relating to litigation, (2) that is either pending or reasonably anticipated.” Id. (citing Op. Tex. Att’y Gen. ORD-647 (1996)). As a result, a governmental body may withhold otherwise public information if it is the subject of current or pending litigation. Current litigation is a straightforward inquiry. Pending, or “reasonably anticipated” litigation can be less so. We know from the Attorney General that “litigation cannot be reasonably anticipated until concrete evidence suggests that litigation will ensue.” Texas Legal Foundation, 958 S.W.2d at 481 (citing Op. Tex. Att’y Gen. ORD-452 (1986)). As a result, each “reasonably anticipated litigation” inquiry will depend on the specific facts in question. In University of Texas Law School v. Texas Legal Foundation, the court outlined a number of factors that can be considered. Id. at 482. For instance, if the attorney requesting the information was involved in prior litigation with the governmental body on similar claims, such facts could lead to a conclusion that litigation was reasonably anticipated. Id. Moreover, even if the attorney requesting information does not have any plaintiff clients, the litigation exception may still be utilized, if the information identifies the potential plaintiffs. Id. Specifically, in Texas Legal Foundation, the requesting attorney sought information from the University of Texas School of Law regarding rejected students, with a letter stating that he intended to send a letter to the rejected applicants informing them that he believed the law school had violated their constitutional rights. Id. So even though no plaintiffs existed, the court considered the circumstances, and determined the information sought indicated that litigation was “reasonably anticipated.”

In addition to information created during litigation, or in reasonable anticipation of future litigation, certain information created during prior litigation is also excepted from disclosure. See In re City of Georgetown, 53 S.W.3d 328, 331-32 (Tex. 2001). Specifically, attorney-client privileged material and work product may be excepted from disclsoure. Id. It may seem obvious that attorney-client privileged material and work product would be excepted from public disclosure, but the TPIA expressly provides for disclosure of “a completed report, audit, or investigation made of, for, or by a governmental body . . . .” Tex. Gov’t Code § 552.022(a)(1). When confronted with the question of whether a completed report made by a consulting expert for a governmental body was excepted from public disclosure based on the litigation exception, the Supreme Court of Texas focused on section 552.022(a), which provides a list of public information that is “not excepted from required disclosure under this chapter unless they are expressly confidential under other law,” meaning law other than the TPIA. In re City of Georgetown, 53 S.W.3d at 331(citing Tex. Gov’t Code § 552.022(a)) (emphasis added). So, the Court looked outside of the TPIA, construing “other law” broadly to determine that attorney-client privileged material and work product must be excepted from disclosure under the litigation exception. Id. at 331-32. To rule otherwise, the Court held, would mean that “[g]overnmental entities would have to disclose all legal advice and strategy to those with whom they are negotiating contract or other agreements, rendering the process decidedly one-sided.” Id. at 333.

The bottom line with the litigation exception is that (1) traditionally protected confidential information, such as attorney-client privileged material and work product are likely excepted from disclosure, and (2) for pending or reasonably anticipated litigation, the circumstances of the request, and the information requested, will both play a role in whether the litigation exception is appropriate.

III.     A suit for Writ of Mandamus in the District Court subjects the parties to the ordinary rules of discovery.

The second scenario arises under much less likely circumstances. If a governmental body wishes to withhold information, it must ask the Attorney General’s office for an opinion on whether or not it can do so. Tex. Gov’t Code § 552.301. In the event the Attorney General’s office issues an opinion supporting an exception to disclosure, or any other determination against disclosure, the requestor has the option of seeking a Writ of Mandamus in district court to compel disclosure. Id. at § 552.321. Here, the question is whether or not a requestor, that has been refused information, may appeal to the district court and request the same information under the rules of discovery that it had been denied under the TPIA.

A requestor seeking recourse in the district court subjects the dispute to the rules of civil procedure, as opposed to the TPIA. The TPIA provides that “[the TPIA] does not affect the scope of civil discovery under the Texas Rules of Civil Procedure.” Id. at § 552.005. Nor do “[e]xceptions from disclosure [] create new privileges from discovery.” Id. Thus, when the parties have advanced their dispute to the District Court, the ordinary rules of discovery apply. The upshot of section 552.005 is that the ordinary exceptions to disclosure under the TPIA do not apply in civil litigation and the parties are subject to the rules of civil discovery.

However, it is important to note that filing a civil suit won’t automatically give the requestor the ability to obtain the information, as relevance and privilege considerations must still be observed. See Tex. R. Civ. P. 192.3. A trial court may also review the information in-camera first, before making a determination on mandamus. Nevertheless, a requestor could articulate an argument for disclosure.

But now in litigation, a requestor should consider the consequence of obtaining the information it sought under the TPIA. For instance, disclosure before a final ruling could mean the loss of the ability to recover attorneys’ fees—one of the primary benefits motivating requestors to seek judicial review of an Attorney General decision.

The TPIA provides attorneys’ fees for a plaintiff who “substantially prevails.” See Tex. Gov’t Code § 552.323. In other words, a requestor who is forced to seek mandamus relief, and ultimately prevails, is generally entitled to attorneys’ fees. However, the term “substantially prevail” requires a “judicially sanctioned relief on the merits that materially alters the legal relationship between the parties.” Dallas Morning News, Inc. v. City of Arlington, No. 03-10-00192-CV, 2011 WL 182886, at *3 (Tex. App. – Austin Jan. 21, 2011, no pet.) (internal citations omitted). Indeed, “the judgment, not preliminary rulings or findings is critical to the prevailing-party determination.” Id. (internal citation omitted). And the release of contested documents is akin to a party voluntarily engaging in an action making the lawsuit moot, and thus resolving the issue without a judgment. Id. at *4. Therefore, if the documents are produced prior to a final judgment forcing production, the requesting party has not “substantially prevailed” and is not entitled to attorneys’ fees.

IV.     Conclusion

While the TPIA and civil discovery intersect under limited circumstances, it is important for a requestor or litigant to understand how they work together. Indeed, both provide an effective avenue for obtaining information, but they both do so under different rules. A request for public information can be a quick and efficient means of obtaining information from a governmental body when investigating a suit. However, if suit is “reasonably anticipated,” the governmental body may deny the TPIA request.

And, a party seeking information through the TPIA, even if denied by the Attorney General, may still obtain the information in civil district court through ordinary discovery. But choosing to do so may not be the best course of action. Indeed, seeking the information through discovery may allow a requester to obtain information in a more time efficient manner, but not necessarily so. And, the consequence of obtaining the information is considerable—namely, the loss of attorneys’ fees.

Legislative Update: Redacting Confidential Information in Government Contracts

The recent legislative session did not have the impact on the Texas Public Information Act (“TPIA”) that many people thought it would.  Specifically, efforts to overturn the Texas Supreme Court’s decisions in Boeing and Greater Houston Partnership failed.  Both Boeing and Greater Houston Partnership have helped businesses protect information under the TPIA.  Specifically, Boeing allows businesses to claim the competition or bidding exception under Section 552.104, which protects “information that, if released, would give advantage to a competitor or bidder” from disclosure.  Tex. Gov’t Code § 552.104(a).  To protect their information under this section, a business need only show that the information “would” give competitors an advantage, not that the advantage is decisive to the competition.  Moreover, the exception is not limited to an ongoing bidding process, or indeed, to a bidding process at all, but grants private parties the right to claim the exception where release of the information would give an advantage to a competitor, regardless of the context.

Likewise, Greater Houston Partnership also expanded protections for businesses.  Specifically, “governmental bodies” are subject to the TPIA.  The TPIA lists eleven specific “governmental bodies,” such as county commissioners, municipalities, and school district board trustees.  Tex. Gov’t Code § 552.003(1)(A).  The TPIA also includes a catchall provision, defining a “governmental body” as an organization “that spends or that is supported in whole or in part by public funds.”  Id.  The Court, however, limited this catchall to only those organizations with a “financially dependent relationship” on a governmental body.  Consequently, many organizations “supported in whole or in part by public funds,” once believed to be subject to the TPIA, may in fact be immune from its disclosure requirements under Greater Houston Partnership.

While these expansions were left unchanged this past legislative session, businesses should nevertheless be aware of an important development that did happen at the Texas Legislature with respect to government contracts.

In 2015, the Legislature passed Senate Bill 20 (“SB 20”).  For more information on SB20, please click here.  Through SB20, the Legislature expanded the public’s access to information related to contracts between the government and private businesses. The legislation created section 2261.253 of the Texas Government Code, which provides that state agencies must post contracts on their agency websites when the contract is for goods or services, and is equal to or greater than $15,000.  Tex. Gov’t Code § 2261.253(a).

But SB 20 did not make all government contracts public—the requirement to post government contracts applies only to “each state agency,” defined as a “(1) a department, commission, board, office, or other agency in the executive branch of state government created by the state constitution or a state statute; (2)  the supreme court, the court of criminal appeals, a court of appeals, or the Texas Judicial Council; or (3) a university system or an institution of higher education as defined by Section 61.003, Education Code, except a public junior college.” Tex. Gov’t Code §§ 2261.002(2), 2151.002.  Consequently, through SB 20, the Legislature effectively defined state agency contracts as “public information,” albeit without reference to the TPIA.  On the other hand, the TPIA—and the “competition or bidding” exception—applies broadly to all “governmental bodies,” including local and regional governments, as well as certain corporations that are sustained by governmental funding. Tex. Gov’t Code § 552.003.  Accordingly, businesses contracting with a municipality—or any other entity covered by the TPIA that is not a “state agency”—should still be able to avail themselves of the Texas Supreme Court’s expansion of the “competition or bidding” exception in Boeing to protect such contracts from disclosure.

Ultimately, while protections for confidential information have been greatly expanded by the Texas Supreme Court in recent years, during the 2015 session, the Texas Legislature implemented a requirement for state agencies to publicly post their contracts with private parties on their respective websites.  As a result, while the TPIA has been expanded by court interpretation, the Legislature—in a wholly separate statutory scheme—limited that expansion significantly.

While Texas Government Code Section 2261.253 is not part of the TPIA, it has ramifications for businesses attempting to protect public information.  For example, if a business wants to protect its trade secrets that were perhaps provided to the government as part of its contract with the government, but the government was required to publicly post that information online, protecting the information from disclosure under the TPIA would be extremely difficult.  As a result, Section 2261.253 eroded much of what Boeing gave to businesses.  This legislative session, however, subsections (e) and (f) were added to Section 2261.253, which provide that when a state agency posts a contract on its website as required by Section 2261.253, the agency “shall redact” information that is confidential under law and information the attorney general deems is excepted from public disclosure under the TPIA.

These new subsections take effect on September 1, 2017.  While the previous version of Section 2261.253 generally required a blanket posting of government contracts without regard to confidential information, these amendments curtail that blanket policy in a significant way.  Specifically, agencies can no longer post information that is “confidential under law” or “information the attorney general determines is excepted from public disclosure under Chapter 552.”  Thus, if a business believes its information is excepted from disclosure under the TPIA, it should now be afforded protection against state agencies making that information available online.  And of course, those exceptions in the TPIA include the very broad exception for “information that, if released, would give advantage to a competitor or bidder,” Tex. Gov’t Code § 552.104, trade secrets, Tex. Gov’t Code § 552.110(a), and “commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained,” Tex. Gov’t Code § 552.110(b).

Nevertheless, the procedural mechanisms for implementing these amendments are somewhat unclear.  That is, if a government agency is required to post a contract—and a business has identified portions that are confidential by law or excepted from disclosure under the TPIA—how does the agency determine what information to redact?  Does it simply rely on the position of the business?  Or, must it seek an Attorney General opinion on the portions in question before posting the information online?  Because of the ambiguity of how the new law will be implemented, businesses seeking to protect information in government contracts should conspicuously mark any information they deem confidential when sending the information to the relevant agency.  Then, the business would likely want to note that the information marked is “confidential under law” or “information the attorney general determines is excepted from public disclosure under Chapter 552” and can therefore, not be posted online.  And, the business should point out in a cover letter that, to the extent the agency believes it is required to post any of the information marked on the internet, it should first seek an opinion from the Attorney General.  With these steps, businesses can take full advantage of these new provisions and hopefully rely upon them until it is obvious how they will play out procedurally.  At the end of the day, these amendments to Section 2261.253 have provided further, additional protection for businesses under the TPIA. If your business seeks to do business with the State of Texas, but would like to protect your confidential information from disclosure, please give the attorneys at Cobb & Counsel a call.