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