This appeal concerns an open-records request involving certain DNA records held by the City of Fort Worth's forensic science laboratory and the interplay between section 552.101 of the Texas Public Information Act (formerly known as the Texas Open Records Act) (1) and subchapter G, chapter 411 of the government code, (2) which prohibits the release of certain DNA records and information contained therein. See Tex. Gov't Code Ann. § 411.153 (West Supp. 2007). After the Attorney General issued a letter ruling concluding that the DNA records held by the City were subject to disclosure under the PIA, appellants the City of Fort Worth and City Manager Dale A. Fisseler (3) filed suit challenging this ruling. Appellees, the Fort Worth Star-Telegram and Melody McDonald, (4) intervened and sought a writ of mandamus to compel the disclosure of information held by the City. The trial court granted appellees' request for a writ of mandamus and ordered the City to disclose the information at issue. Because we conclude that government code section 411.153(b) prohibits the release of information in the DNA records at issue and, therefore, exempts that information from disclosure under the PIA, we reverse the trial court's order granting appellees' request for a writ of mandamus and render judgment in favor of the City.
City of Fort Worth and Dale A. Fisseler, in his Official Capacity as City Manager and as Officer for Public Information v. Greg Abbott, Attorney General of Texas; Fort Worth Star-Telegram and Melody McDonald, No. 03-07-00553-CV (Tex.App.- Austin, July 3, 2008) Opinion by Justice Patterson [ PDF ] (Public Information Act = PIA, Open Records Act, open records request, freedom of information) (Before Justices Patterson, Puryear and Henson)
Appeal from 353rd District Court of Travis County
Disposition: Reversed and rendered
FACTUAL AND PROCEDURAL BACKGROUND
Melody McDonald, a reporter for the Star-Telegram, filed an open-records request with the City requesting "[t]he case file and/or all reports, memorandums or notes from the Fort Worth Police Department's Forensic Science Laboratory" regarding two rape/murder victims. In response to this request, the City sought a ruling from the Attorney General arguing that certain requested information was exempt from disclosure under section 552.101 of the PIA (5) because government code section 411.153(b) (6) prohibits the release of information in a DNA record. See id. § 552.301(a) (West Supp. 2007) (allowing governmental body to seek ruling on disclosure from the Attorney General). The information at issue included four categories of DNA records held by the City's forensic science laboratory: (7)
1) DNA records of the suspect and another convicted offender;
2) DNA records of four individuals who were present at a crime scene and who voluntarily gave samples in order to be excluded as suspects;
3) the court-ordered sample from the second suspect; and
4) DNA records of the victims.
The Attorney General issued a letter ruling requiring the City to disclose information, including certain DNA records, sought by the Star-Telegram. See Tex. Att'y Gen. ORL2007-02471 (Mar. 5, 2007). The Attorney General rejected the City's argument that section 411.153(b) made the information in DNA records exempt from disclosure under the PIA and concluded that, unless the DNA records were included in the state DNA database maintained by the director of the Texas Department of Public Safety, the information was subject to disclosure under the PIA:
[T]o the extent the submitted information is maintained in the public safety director's database, it must be withheld under section 552.101 of the Government Code in conjunction with section 411.153 of the Government Code. To the extent the submitted information is not maintained in the public safety director's DNA database, it is not confidential under section 552.101 of the Government Code in conjunction with section 411.153, and must be released.
See id.
Because most of the DNA records at issue had not been forwarded by the City to the DPS director for inclusion in the state DNA database, see Tex. Gov't Code Ann. § 411.144(d) (requiring a DNA laboratory to forward DNA records and forensic analyses to the director), the Star-Telegram maintained that those DNA records were subject to disclosure under the Attorney General's ruling. To protect the confidentiality of the information in the DNA records at issue, the City filed suit against the Attorney General to challenge the ruling. See id. § 552.324 (West 2004) (providing for suit against the Attorney General). The Star-Telegram intervened in the City's suit and sought a writ of mandamus to enforce the Attorney General's letter ruling and compel disclosure by the City. See id. § 552.321 (West 2004) (allowing requesting party to seek writ of mandamus for failure to comply with PIA). The trial court granted the Star-Telegram's request for mandamus relief and ordered the City to disclose the information to the extent it was not included in the DNA database maintained by the director of the DPS. By its terms, the trial court's order commands the City to disclose all information in its case file, except the DNA records of the convicted offender, which are maintained in the DPS's DNA database:
[T]he City of Fort Worth shall immediately disclose to Intervenors Fort Worth Star-Telegram and Melody McDonald the requested information made the basis of this suit, which information is described as the case file and/or all reports, memoranda or notes from the Fort Worth Police Department's Forensic Science Laboratory . . . save and except that portion of the requested information which is maintained in the DNA Database, specifically, all DNA records for the convicted offender . . . .
The City appeals from the trial court's order granting appellees' request for a writ of mandamus.
DISCUSSION
On appeal, the City argues that government code section 411.153(b) prohibits the release of information in the DNA records at issue and, therefore, the trial court erred in granting mandamus relief and ordering the City to disclose the DNA records. The Star-Telegram counters that section 411.153 only prohibits the release of DNA records and information included in the state DNA database; therefore, to the extent the information in DNA records held by the City is not included in the state DNA database, it is subject to disclosure under the PIA. Although the Attorney General has since issued conflicting letter rulings on this issue, he has not taken a position on appeal regarding whether the information and DNA records at issue should be released. (8) For the reasons set forth below, we conclude that section 411.153 prohibits the release of information in the DNA records at issue and that the trial court erred in granting appellees' request for mandamus relief and in ordering the City to disclose this information.
Standard of Review
Appeal is the proper remedy for review of the trial court's order granting a writ of mandamus in this context. See Love v. Wilcox, 28 S.W.2d 515, 521 (Tex. 1930); see also In re City of Georgetown, 53 S.W.3d 328, 337 (Tex. 2001) (Hecht, J., concurring). An action for a writ of mandamus initiated in the trial court is a civil action subject to appeal like any other civil suit. See Anderson v. City of Seven Points, 806 S.W.2d 791, 791 n.1 (Tex. 1991); University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.).
Whether information is subject to the PIA and whether an exception to disclosure applies to the information are questions of law involving statutory construction. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000); A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995). We review questions of statutory construction de novo. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003) (appellate courts review matters of statutory construction de novo); In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) (questions of law are always subject to de novo review).
Are the DNA records at issue subject to disclosure under the Public Information Act?
The central issue on appeal is whether certain DNA records held by the City's forensic science laboratory are subject to disclosure under the PIA or whether they are exempt from disclosure based on government code section 411.153(b). The parties do not dispute that DNA records included in the DNA database maintained by the director of the DPS are confidential and not subject to disclosure under the PIA as expressly provided for in government code section 411.153(a). See Tex. Gov't Code Ann. § 411.153(a). The dispute concerns information in DNA records that are not included in the state DNA database--i.e., information in the DNA records of the victims and the DNA records of persons who voluntarily submitted DNA samples to be excluded as suspects in a crime--and whether that information is subject to disclosure under the PIA or whether the release of information in those DNA records is prohibited by government code section 411.153(b).
The issue before us is one of first impression and presents a matter of statutory construction. Our primary goal when construing a statute is to ascertain and give effect to the legislative intent. See City of San Antonio, 111 S.W.3d at 25. To determine legislative intent, we look to the statute as a whole, as opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). We begin with the plain language of the statute at issue and apply its common meaning. City of San Antonio, 111 S.W.3d at 25. Where the statutory text is unambiguous, we adopt a construction supported by the statute's plain language, unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999).
In this case, we are called upon to reconcile the legislative mandate that information held by governmental bodies is public information with the legislative directives regarding the confidentiality of DNA records. The PIA states, "It is the policy of this state that each person is entitled unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees." See Tex. Gov't Code Ann. § 552.001 (West 2004). To that end, the PIA provides that "public information is available to the public at a minimum during the normal business hours of the governmental body." Id. § 552.021 (West 2004). The PIA mandates a liberal construction to implement this policy and one that favors a request for information. See id. § 552.001; see also City of Garland, 22 S.W.3d at 357.
A governmental body seeking to withhold requested information must submit a timely request to the Attorney General for a ruling on disclosure and assert those specific exceptions from disclosure that apply. See Tex. Gov't Code Ann. § 552.301. An exception from disclosure is found in section 552.101, which provides that information is excepted from disclosure if it is information considered to be confidential by law. See id. § 552.101 (West 2004). The City contends that government code section 411.153(b) makes confidential information in DNA records, regardless of whether the DNA record is included in the state DNA database maintained by the DPS director.
In its request for a ruling from the Attorney General, the City asserted that government code section 411.153(b) prohibited the release of the DNA records at issue and, therefore, the requested information was exempt from disclosure under section 552.101. See id. §§ 411.153(b); 552.101. Section 411.153(b) is part of a comprehensive statutory scheme enacted by the legislature to govern the collection, use, and dissemination of DNA records collected by law enforcement agencies. See id. §§ 411.141-.154 (West 2005 & Supp. 2007). In subchapter G, chapter 411 of the government code, the legislature created a DNA database that would be "the central depository in the state for DNA records." See id. § 411.142(a). As we interpret subchapter G, we conclude that the legislature envisioned a central depository to be maintained by the DPS director for all DNA records collected by law enforcement agencies throughout the state. Nothing in the statute suggests that local law enforcement agencies may create their own individualized DNA databases without forwarding the information and DNA records to the director for inclusion in the state DNA database established in subchapter G, chapter 411 of the government code. See, e.g., id. §§ 411.142 (establishing DNA database); .143 (purpose of DNA database); .144 (regulating DNA laboratories, requiring laboratories to forward DNA records and forensic analyses to the director, and providing for penalties).
Under the framework of subchapter G, a "DNA laboratory" performs an analysis of samples or specimens received and produces a "DNA record," which is the "result[ ] of a forensic DNA analysis performed by a DNA laboratory." Id. § 411.141(3)-(4) (defining "DNA laboratory" and "DNA record"). The legislature has provided that the state DNA database must be compatible with the national DNA identification index system, or CODIS, used by the FBI so as to permit the useful exchange and storage of DNA records or information derived from those records. Id. § 411.142(f). The legislature has specified those types of DNA records that may be contained in the state DNA database. Id. § 411.142(g). Included among the types of DNA records that may be contained in the state DNA database is "a biological specimen that is legally obtained in the investigation of a crime, regardless of origin." Id. § 411.142(g)(3).
The legislature has delegated authority to the DPS to promulgate standards for the certification of DNA laboratories and procedures for forensic DNA analysis by DNA laboratories to facilitate the exchange of DNA evidence and the use of such evidence in a criminal case. See id. §§ 411.142(h); 144(a). There is no dispute that the City's forensic science laboratory is a certified DNA laboratory within the meaning of subchapter G, chapter 411 of the government code. Section 411.144(d) expressly requires a DNA laboratory conducting a DNA analysis under subchapter G to forward the DNA record of the analysis to the director. See id. § 411.144(d). The legislature has also directed the DPS to promulgate rules establishing procedures to prevent unauthorized access to the DNA database and to allow for the release of DNA records, specimens, or analyses from the DNA database. See id. § 411.147(a). The legislature has further provided that the DPS may only release a DNA sample, analysis, or record in certain circumstances. See id. § 411.147(c).
With regard to the confidentiality of DNA records, the legislature has provided in section 411.153(a) that "[a] DNA record stored in the DNA database is confidential and is not subject to disclosure under the open records law, Chapter 552." Id. § 411.153(a). At the time of the Star-Telegram's request in this case, section 411.153(b) also provided that "[a] person commits an offense if the person knowingly discloses information in a DNA record or information related to a DNA analysis of a sample collected under this subchapter." See Act of May 30, 2005, 79th Leg., R.S., ch.1224, § 15, 2005 Tex. Gen. Laws 3952, 3962 (current version at Tex. Gov't Code Ann. § 411.153 (West Supp. 2007)). (9)
Consistent with the Attorney General's ruling in this case, the Star-Telegram urges that, because the DNA records at issue--i.e., the DNA records of the victims and those who voluntarily gave DNA samples to be excluded as suspects--are not stored in the DNA database, those DNA records are not exempt from disclosure under the PIA. See Tex. Att'y Gen. ORL2007-02471 (2007). By expressly providing that only DNA records in the database are exempt from disclosure under the PIA, the Star-Telegram argues that the legislature intended only to exempt DNA records in the DNA database, and not all DNA records. The City counters that the interpretation urged by the Star-Telegram would render section 411.153(b) meaningless.
As previously noted, the Attorney General has rendered conflicting opinions on whether section 411.153(b) exempts DNA records from disclosure under the PIA. Responding to the City's request for an opinion in this case, the Attorney General rejected the City's argument that section 411.153(b) exempted the DNA records at issue or the information in those records from disclosure under the PIA. See id. Since issuing this ruling, however, the Attorney General has issued rulings in at least three other cases finding that section 411.153 exempts DNA records and information in DNA records from disclosure under the PIA. (10) See Tex. Att'y Gen. ORL2008-04899 (Apr. 11, 2008); ORL2008-02901 (Mar. 4, 2008); ORL2008-01706 (Feb. 5, 2008). In these subsequent letter rulings, the Attorney General makes no distinction between DNA records included in the state DNA database and DNA records that are not included in the state DNA database. See id. ORL2008-04899 at 3-4; ORL2008-02901 at 4-5; ORL2008-01706 at 1-2. In letter ruling ORL2008-01706, the Attorney General expressly found that DNA records and information in the Dallas County District Attorney's files were confidential and must be withheld under section 411.153(b). See id. ORL2008-01706 at 2. We recognize that opinions of the Attorney General are persuasive authority and are not controlling on the courts. See Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996); Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 336 (Tex. App.--Austin 2000, pet. denied). Accordingly, we are not bound to follow them--especially in a situation, as here, where the Attorney General has issued conflicting opinions on the same issue. Compare Tex. Att'y Gen. ORL2007-02471 with Tex. Att'y Gen. ORL2008-04899; ORL2008-02901; ORL2008-01706.
We conclude that a plain reading of subchapter G, chapter 411 of the government code prohibits the release of information in DNA records even if the DNA records have yet to be forwarded to the DPS director for inclusion in the state DNA database. The legislature has defined "DNA record" to mean "the results of a forensic DNA analysis performed by a DNA laboratory and, if known, the name of the person who is the subject of the analysis." See Tex. Gov't Code Ann. § 411.141(7). The parties do not dispute that the DNA records at issue meet the definition of "DNA record" in government code section 411.141(7). See id. Nor do they dispute that the director of the DPS is required to establish certain standards and procedures for DNA laboratories or that a DNA laboratory conducting a forensic DNA analysis under subchapter G must forward the DNA record of that analysis to the director. See id. §§ 411.142(h), 411.144(a) (requiring director to establish standards and procedures for DNA laboratories), (d) (requiring laboratory to forward DNA records and analyses to the director). That the City's DNA laboratory has not forwarded the DNA records at issue to the director may be a violation of subchapter G, and may subject the City's DNA laboratory to penalties thereunder, but it does not affect the confidentiality of those DNA records under section 411.153(b). (11)
In section 411.153(a), the legislature expressly provided that DNA records in the state DNA database are not subject to disclosure under the PIA. See id. § 411.153(a). In addition, the legislature recognized that the DNA database maintained by the DPS director may not include all DNA records, much less all of the information in DNA records or information related to a DNA analysis of a sample collected under this subchapter. (12) See id. § 411.153(b). Reading the statute as a whole, we agree that section 411.153(a) exempts DNA records included in the state DNA database from disclosure under the PIA. Id. § 411.153(a). We further conclude that by its use of the phrase "information in a DNA record" the legislature in section 411.153(b) prohibited the release of a broader category of information than DNA records included in the state DNA database. Id. § 411.153(b). We therefore agree with the City that section 411.153(b) protects from disclosure information in a DNA record, even if that DNA record has not been forwarded to the director for inclusion in the state DNA database. See id.
Were we to adopt the Star-Telegram's interpretation of section 411.153, we would be left with the absurd result that only the DNA records of the convicted offender would be exempt from disclosure under the PIA. We do not believe this is what the legislature intended. See University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 & n.20 (Tex. 2004) (recognizing that courts should not construe statutes in a way that leads to absurd results). The City's construction of section 411.153 is consistent with the legislature's comprehensive scheme and purpose in creating the state DNA database. (13) See generally Tex. Gov't Code Ann. §§ 411.141-.154. Because the plain language of section 411.153(b), when read in conjunction with the other provisions in subchapter G, chapter 411 of the government code, prohibits the release of information in a DNA record regardless of whether that DNA record has been forwarded to the DPS director for inclusion in the state DNA database, we conclude that the DNA records at issue, and the information contained therein, are confidential by law and therefore exempt from disclosure under the PIA. See id. §§ 411.153(b), 552.101. Accordingly, we sustain the City's issue on appeal.
CONCLUSION
Because we conclude that section 411.153(b) prohibits the release of information in a DNA record and that the DNA records at issue are therefore exempt from disclosure under the PIA, we reverse the trial court's order granting appellees' request for writ of mandamus and render judgment in favor of the City.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Reversed and Rendered
Filed: July 3, 2008
1. Tex. Gov't Gode Ann. §§ 552.001-.353 (West 2004 & Supp. 2007). For convenience, we cite to the current version of the statute unless noted otherwise.
2. Id. §§ 411.141-.154 (West 2005 & Supp. 2007). For convenience, we cite to the current version of the statute unless noted otherwise.
3. We substitute Dale A. Fisseler, in his official capacity as City Manager and as Officer of Public Information, as the proper party on appeal in place of former City Manager, Charles Boswell. See Tex. R. App. P. 7.2(a) (automatic substitution of public officer).
4. Because their interests align, we refer to appellees the Fort Worth Star-Telegram and Melody McDonald collectively as the "Star-Telegram" unless specifically noted otherwise.
5. Section 552.101 provides that "[i]nformation is excepted from the [disclosure] requirements of Section 552.021 if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Tex. Gov't Code Ann. § 552.101.
6. Section 411.153 is captioned "Confidentiality of DNA Records" and provides:
(a) A DNA record stored in the DNA database is confidential and is not subject to disclosure under the public information law, Chapter 552.
(b) A person commits an offense if the person knowingly discloses to an unauthorized recipient information in a DNA record or information related to a DNA analysis of a sample collected under this subchapter.
(c) An offense under this section is a state jail felony.
(d) A violation under this section constitutes official misconduct.
Id. § 411.153.
7. The record demonstrates that the City contracted with a private laboratory to provide forensic DNA analysis and that the DNA records at issue are contained in the files of this private laboratory. That the information and DNA records are held by a private laboratory does not affect our analysis of the issues presented on appeal because the City retains ownership and a right of access to the information and DNA records. See id. § 552.002(a)(2).
8. Instead, the Attorney General has filed a brief directing this Court to refer to the briefs and arguments submitted by the other parties.
9. Section 411.153 was amended in 2007 to add the phrase "to an unauthorized recipient" after the phrase "knowingly discloses information." See Act of May 23, 2007, 80th Leg., R.S., ch. 760, § 4, 2007 Tex. Gen. Laws 1569, 1571.
10. Although he is a named party in this appeal, the Attorney General has not explained the reasons for this change in his interpretation of section 411.153.
11. By failing to forward the DNA records at issue to the DPS director as required in section 411.144, the City has only served to complicate the decision-making process in this matter. There is no merit in the City's arguments that the DNA records in question cannot be sent to the DPS director for inclusion in the state DNA database. The legislature has expressly provided that DNA records of deceased victims and voluntary donors may be included in the state DNA database. See Tex. Gov't Code Ann. § 411.142(g)(2)-(3); see also id. § 411.149. Moreover, even if federal law prohibits the inclusion of certain DNA records in the national DNA database, there is nothing in subchapter G that prohibits the state from including such records in the state DNA database. Texas law requires only that the state DNA database be compatible with the national database, so as to permit the useful exchange of records and information, not that the records and information stored in the state DNA database be the same as that stored in the national database. See id. § 411.142(f).
12. As one commentator has explained, the reason for this lack of inclusion may be a practical one involving lack of time and money. See Craig M. Cooley, Forensic Science and Capital Punishment Reform: An "Intellectually Honest" Assessment, 17 Geo. Mason U. Civ. Rts. L.J. 299, 309-18 (2007). The increasing reliance on DNA evidence for prosecutions, statutes requiring certain defendants to submit DNA samples, and the expense required to increase DNA laboratory staffing and modernize older facilities has led to a growing backlog of samples that are waiting to be recorded in state and federal DNA databases. See id. An investigation of the DPS in 2000 revealed that just over one-half of the DNA samples received by DPS had been analyzed and recorded. See Paul E. Tracy & Vincent Morgan, Criminology: Big Brother and His Science Kit: DNA Databases for 21st Century Crime Control?, 90 J. Crim. L. & Criminology 635, 643 (2000). Congress has since passed the Debbie Smith DNA Backlog Grant Program to help expedite the inclusion of DNA samples obtained from law enforcement laboratories into the state and federal DNA databases. See 42 U.S.C.A. § 14135 (West 2005).
13. The City's construction is likewise consistent with the Attorney General's subsequent rulings on this issue. See Tex. Att'y Gen. ORL2008-04899 (Apr. 11, 2008); ORL2008-02901 (Mar. 4, 2008); ORL2008-01706 (Feb. 5, 2008).
Showing posts with label Open Records Act. Show all posts
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Sunday, July 6, 2008
Tuesday, December 11, 2007
Lake Travis ISD v. Lovelace (Tex.App. - Austin 2007)
School District's suit to shut down as nuisance prolific requests under the Open Records Act fails.
Appellant, Lake Travis Independent School District// Cross-Appellants, David Lovelace and Melissa Lovelace v. Appellees, David Lovelace and Melissa Lovelace// Cross-Appellee, Lake Travis Independent School District, No. 03-06-00742-CV (Tex.App.- Austin, Nov. 29, 2007)
(Opinion by Justice Henson )(Open Records Act, Public Information Act, nuisance theory)(Before Chief Justice Law, Justices Waldrop and Henson)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-06-003726, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
O P I N I O N
Lake Travis Independent School District ("District") appeals an order dismissing for lack of jurisdiction its suit against David and Melissa Lovelace alleging common-law claims for public nuisance and abuse of governmental process.
The District sought (1) temporary and permanent injunctions against the Lovelaces to prevent them from submitting requests for public information under the Texas Public Information Act ("PIA") (1) or, in the alternative, a court-ordered procedure applicable to all requests submitted by the Lovelaces modifying the form that their requests would take under the PIA; (2) declarations that the Lovelaces had abused and misused the PIA, that all future requests by the Lovelaces for information pursuant to the PIA shall be governed by a modified, court-ordered process, and that the District would not be in violation of the PIA by complying with the modified process; and (3) actual monetary damages, attorney's fees, and costs. The trial court ruled that the District's suit was barred by section 552.324 of the PIA, and the District appeals. See Tex. Gov't Code Ann. § 552.324 (West 2004). The Lovelaces bring a cross-appeal from the trial court's order denying them attorney's fees. For the reasons that follow, we affirm.
* * *
CONCLUSION
Because we find that the legislature specifically precluded suits against requestors of public information and that the appropriate remedy for abuses related to the PIA must be provided by the legislature within the statutory framework, we affirm the trial court's dismissal. We further hold that the denial of sanctions to the Lovelaces was not an abuse of discretion.
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: November 29, 2007
1. Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004).
2. The SBEC is the agency responsible for the licensing and discipline of certified educators in Texas.
3. Although the Lovelaces complain of the court's failure to award attorney's fees, they essentially contest the trial court's refusal to find that the District's suit was groundless, frivolous, and brought in bad faith or for an improper purpose. Therefore, we refer to the Lovelaces' issue on cross-appeal as the trial court's failure to impose sanctions on the District.
4. From the time the PIA became effective, the legislature has allowed governmental bodies to charge reasonable fees when disclosing information "in an effort to ensure that the governmental body was not overly burdened." See Tex. H.B. 1718, 74th Leg., R.S. (1995) (concerning the revision of open records law). See also Tex. Gov't Code Ann. §§ 552.230 (West Supp. 2006) (providing that a governmental body may promulgate reasonable rules of procedure under which public information may be inspected), .232 (providing procedures for responding to repetitious or redundant requests), .263 (providing that an officer for public information may require a deposit or bond for payment of anticipated costs for the preparation of a copy of public information).
5. Section 552.353 sets forth the consequences for a public information officer's failure to provide access to public information and is not relevant to this discussion. See Tex. Gov't Code Ann. § 553.353 (West Supp. 2006).
6. The suit would be barred even if the District were to withdraw its request for injunctive relief and seek only a modified, court-ordered procedure to apply to the Lovelaces' requests. The effect under that scheme would be to remove the Lovelaces from the system created by the PIA, withholding information specifically from them that would ordinarily be made available under the statute.
7. We also note that the legislature has already begun to implement additional safeguards under the PIA in apparent response to the concerns of this sort of misuse voiced by governmental bodies. See, e.g., the "36-hour rule," Act of May 27, 2007, 80th Leg., R.S., H.B. 2564, § 1 (to be codified at Tex. Gov't Code Ann. § 552.275) (effective Sept. 1, 2007) (allowing governmental bodies to establish reasonable time limits on the amount of personnel time spent producing or providing copies of public information, not less than 36 hours in a 12-month period).
8. Our holding precludes both of the District's common-law causes of action. Apparently subsumed within its general allegation that the Lovelaces' conduct is a common-law public nuisance and an abuse of governmental process, however, is the District's claim that the Lovelaces misused the District's and the SBEC's complaint procedures. In its brief, the District states, "the District's position was that the Lovelaces' overall approach to requesting documents - the massive number of often simultaneous requests . . . and the internal and external complaints filed under and related to the TPIA - was all part of a concerted effort to harass the District and its employees" (emphasis added). The District did not brief the "misuse of complaint procedures" issue as though it offers a separate basis for subject-matter jurisdiction. Any argument that the District has a common-law claim for public nuisance or abuse of governmental process because of the Lovelaces' misuse of the complaint procedures (unrelated to the PIA) is therefore waived. See Tex. R. App. Proc. 38.1(h); see also GSC Enters., Inc. v. Rylander, 85 S.W.3d 469, 474 (Tex. App.--Austin 2002, no pet.).
9. See Thompson v. Kimbrough, 23 Tex. Civ. App. 350, 57 S.W. 328 (Dallas 1900, writ ref'd). In that case, a school district successfully sued the county for common-law public nuisance to prevent the establishment of a smallpox "pesthouse" near a school building. Id. at 329.
10. Amicus Eanes Independent School District filed a brief in support of the District, discussing similar abuses and costs incurred in that district stemming from requests for public information pursuant to the PIA.
11. The Lovelaces offer no support for their allegation that the District's suit was a strategic lawsuit against public participation, commonly known as a "SLAPP" suit. Black defines a SLAPP suit as "a suit brought by a developer, corporate executive, or elected official to stifle those who protest against some type of high-dollar initiative or who take an adverse position on a public-interest issue." Black's Law Dictionary 1393 (7th ed. 1999). The District contends that it has fully complied with each of the 2,274 requests for public information made by the Lovelaces, and the Lovelaces have not pointed us to any evidence to the contrary. Nor does the record contain any indication that the District intended to stifle the Lovelaces because of the position the Lovelaces have taken with respect to the "issue" of open government.
Appellant, Lake Travis Independent School District// Cross-Appellants, David Lovelace and Melissa Lovelace v. Appellees, David Lovelace and Melissa Lovelace// Cross-Appellee, Lake Travis Independent School District, No. 03-06-00742-CV (Tex.App.- Austin, Nov. 29, 2007)
(Opinion by Justice Henson )(Open Records Act, Public Information Act, nuisance theory)(Before Chief Justice Law, Justices Waldrop and Henson)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-06-003726, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
O P I N I O N
Lake Travis Independent School District ("District") appeals an order dismissing for lack of jurisdiction its suit against David and Melissa Lovelace alleging common-law claims for public nuisance and abuse of governmental process.
The District sought (1) temporary and permanent injunctions against the Lovelaces to prevent them from submitting requests for public information under the Texas Public Information Act ("PIA") (1) or, in the alternative, a court-ordered procedure applicable to all requests submitted by the Lovelaces modifying the form that their requests would take under the PIA; (2) declarations that the Lovelaces had abused and misused the PIA, that all future requests by the Lovelaces for information pursuant to the PIA shall be governed by a modified, court-ordered process, and that the District would not be in violation of the PIA by complying with the modified process; and (3) actual monetary damages, attorney's fees, and costs. The trial court ruled that the District's suit was barred by section 552.324 of the PIA, and the District appeals. See Tex. Gov't Code Ann. § 552.324 (West 2004). The Lovelaces bring a cross-appeal from the trial court's order denying them attorney's fees. For the reasons that follow, we affirm.
* * *
CONCLUSION
Because we find that the legislature specifically precluded suits against requestors of public information and that the appropriate remedy for abuses related to the PIA must be provided by the legislature within the statutory framework, we affirm the trial court's dismissal. We further hold that the denial of sanctions to the Lovelaces was not an abuse of discretion.
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: November 29, 2007
1. Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004).
2. The SBEC is the agency responsible for the licensing and discipline of certified educators in Texas.
3. Although the Lovelaces complain of the court's failure to award attorney's fees, they essentially contest the trial court's refusal to find that the District's suit was groundless, frivolous, and brought in bad faith or for an improper purpose. Therefore, we refer to the Lovelaces' issue on cross-appeal as the trial court's failure to impose sanctions on the District.
4. From the time the PIA became effective, the legislature has allowed governmental bodies to charge reasonable fees when disclosing information "in an effort to ensure that the governmental body was not overly burdened." See Tex. H.B. 1718, 74th Leg., R.S. (1995) (concerning the revision of open records law). See also Tex. Gov't Code Ann. §§ 552.230 (West Supp. 2006) (providing that a governmental body may promulgate reasonable rules of procedure under which public information may be inspected), .232 (providing procedures for responding to repetitious or redundant requests), .263 (providing that an officer for public information may require a deposit or bond for payment of anticipated costs for the preparation of a copy of public information).
5. Section 552.353 sets forth the consequences for a public information officer's failure to provide access to public information and is not relevant to this discussion. See Tex. Gov't Code Ann. § 553.353 (West Supp. 2006).
6. The suit would be barred even if the District were to withdraw its request for injunctive relief and seek only a modified, court-ordered procedure to apply to the Lovelaces' requests. The effect under that scheme would be to remove the Lovelaces from the system created by the PIA, withholding information specifically from them that would ordinarily be made available under the statute.
7. We also note that the legislature has already begun to implement additional safeguards under the PIA in apparent response to the concerns of this sort of misuse voiced by governmental bodies. See, e.g., the "36-hour rule," Act of May 27, 2007, 80th Leg., R.S., H.B. 2564, § 1 (to be codified at Tex. Gov't Code Ann. § 552.275) (effective Sept. 1, 2007) (allowing governmental bodies to establish reasonable time limits on the amount of personnel time spent producing or providing copies of public information, not less than 36 hours in a 12-month period).
8. Our holding precludes both of the District's common-law causes of action. Apparently subsumed within its general allegation that the Lovelaces' conduct is a common-law public nuisance and an abuse of governmental process, however, is the District's claim that the Lovelaces misused the District's and the SBEC's complaint procedures. In its brief, the District states, "the District's position was that the Lovelaces' overall approach to requesting documents - the massive number of often simultaneous requests . . . and the internal and external complaints filed under and related to the TPIA - was all part of a concerted effort to harass the District and its employees" (emphasis added). The District did not brief the "misuse of complaint procedures" issue as though it offers a separate basis for subject-matter jurisdiction. Any argument that the District has a common-law claim for public nuisance or abuse of governmental process because of the Lovelaces' misuse of the complaint procedures (unrelated to the PIA) is therefore waived. See Tex. R. App. Proc. 38.1(h); see also GSC Enters., Inc. v. Rylander, 85 S.W.3d 469, 474 (Tex. App.--Austin 2002, no pet.).
9. See Thompson v. Kimbrough, 23 Tex. Civ. App. 350, 57 S.W. 328 (Dallas 1900, writ ref'd). In that case, a school district successfully sued the county for common-law public nuisance to prevent the establishment of a smallpox "pesthouse" near a school building. Id. at 329.
10. Amicus Eanes Independent School District filed a brief in support of the District, discussing similar abuses and costs incurred in that district stemming from requests for public information pursuant to the PIA.
11. The Lovelaces offer no support for their allegation that the District's suit was a strategic lawsuit against public participation, commonly known as a "SLAPP" suit. Black defines a SLAPP suit as "a suit brought by a developer, corporate executive, or elected official to stifle those who protest against some type of high-dollar initiative or who take an adverse position on a public-interest issue." Black's Law Dictionary 1393 (7th ed. 1999). The District contends that it has fully complied with each of the 2,274 requests for public information made by the Lovelaces, and the Lovelaces have not pointed us to any evidence to the contrary. Nor does the record contain any indication that the District intended to stifle the Lovelaces because of the position the Lovelaces have taken with respect to the "issue" of open government.
Tuesday, October 2, 2007
Denial of open records request affirmed
Judicial records exempted from mandatory disclosure under Public Information Act p/k/a Open Records Act
Samuel T. Jackson v. Samuel T. Biscoe, in his official capacity as Travis County Judge; Travis County; and the Travis County Commissioner's Court, No. 03-06-00602-CV (Tex.App.- Austin, Oct. 2, 2007)(Opinion by Justice Patterson)(Public Information Act, judicial records exception)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 126th District Court of Travis County
Disposition: Affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-05-003745, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Samuel T. Jackson filed a petition for writ of mandamus under the Public Information Act (1) in the district court, seeking to compel Samuel T. Biscoe, in his official capacity as Travis County Judge, to disclose reports of administrative fees collected in connection with certain proceedings. Biscoe moved for summary judgment, asserting that Jackson's request sought records of the judiciary, not records in Biscoe's custody, and such records are therefore not subject to the Act. The trial court granted summary judgment in favor of Biscoe, and Jackson appeals. For the reasons stated, we affirm the judgment.
BACKGROUND
The Controversy
On May 16, 2005, Jackson sent an electronically transmitted request to Travis County for information under the Public Information Act, seeking reports for the previous four years of administrative fees collected in connection with certain judicial proceedings, including but not limited to the following information: (1) the name and address of each person against whom a fee was assessed; (2) the style, number, and date of each case in which a fee was assessed; (3) the nature and date of each violation for which each fee was assessed; (4) the amount of the fee assessed, and the amount collected; and (5) the nature and date of each case in which no fee was required due to dismissal, acquittal, or error pursuant to section 706.005(b) of the transportation code. See Tex. Transp. Code Ann. §§ 706.005(b), .006 (West Supp. 2006).
The county did not solicit an opinion from the Texas attorney general (2) but responded to the request, claiming that Biscoe's office did not possess any records responsive to the request or that the documents were not accessible to Biscoe: "Please be informed that Judge Biscoe's office does not have the information you requested." Because the county concluded that the requested records included court records, an assistant county attorney referred Jackson to the justices of the peace in the county: "You may want to check with the Justices of the Peace in Travis County to see if they maintain the information you are seeking." In a separate communication, the assistant county attorney advised Jackson that the justice of the peace courts submit the information electronically to OmniBase Services of Texas, a private vendor, that maintains the information and produces a report on the program to which the "justice of the peace courts have access." The county also referred Jackson to OmniBase Services of Texas, the vendor that maintains and administers the records of fees collected pursuant to the program authorized by the legislature. The county provided Jackson with copies of contracts between Travis County and the Texas Department of Public Safety ("TDPS" or the "department") and between the department and OmniBase "to assist in the implementation of chapter 706," the Failure To Appear ("FTA") program.
With regard to the FTA information provided by the county or other local political subdivision, paragraph VIII of the contract provides:
If the person fails to appear or fails to pay or satisfy a judgment as required by law, the local political subdivision may submit an FTA report containing the following information:
(1) the jurisdiction in which the alleged offense occurred;
(2) the name of the local political subdivision submitting the report;
(3) the name, date of birth and Texas driver license number of the person who failed to appear or failed to pay or satisfy a judgment;
(4) the date of the alleged violation;
(5) a brief description of the alleged violation;
(6) a statement that the person failed to appear or failed to pay or satisfy a judgment as required by law;
(7) the date that the person failed to appear or failed to pay or satisfy a judgment; and
(8) any other information required by the TDPS.
* * *
The local political subdivision must make reasonable efforts to ensure that all FTA Reports are accurate, complete and non-duplicative.
Under the contract, the originating court that files the report has a continuing obligation to review and correct or supplement the report.
The Lawsuit
In October 2005, Jackson filed an original petition for writ of mandamus pursuant to section 552.321 of the Public Information Act, seeking to compel Biscoe in his official capacity as county judge to provide Jackson with copies of any reports prepared during the last four years concerning administrative fees collected by Travis County Justices of the Peace pursuant to section 706.006 of the Texas Transportation Code. See Tex. Gov't Code Ann. § 552.321 (West 2004); Tex. Transp. Code Ann. § 706.006. In his original answer, Biscoe asserted official, qualified, and absolute immunity. In an amended answer Biscoe asserted that the requested records were records of the judiciary and therefore not governed by the Act. Both parties filed motions for summary judgment.
In his summary judgment motion, Biscoe asserted that Richard Scott, Justice of the Peace for Travis County precinct 1, is the proper custodian of the records, and that the records are judicial records relating to the civil or criminal litigation in Judge Scott's court and are not public records under the Act. Biscoe attached to his motion the following documents: Jackson's e-mail correspondence with the county, a computer printout and an order for pre-trial conference relating to Jackson's own case before the justice of the peace, a court document relating to Jackson's failure to appear before the justice of the peace, and the affidavit of Judge Scott. In his affidavit, Scott averred that he is the custodian of judicial records relating to civil and criminal litigation:
On or about October 22, 2001, Samuel T. Jackson was assessed a speeding ticket in Travis County. He pled not guilty and was ordered to appear for a pre-trial disposition conference on September 25, 2002. Mr. Jackson failed to appear on that date or to advise the court that he would not be able to appear. As a result, on June 3, 2003, Mr. Jackson was charged with Failing to Appear. As a result, he was assessed two individual "OMNI" fees . . . .
The records relating to the "OMNI" fees assessed against Mr. Jackson are part of the judicial records relating to the criminal litigation created as a result of Mr. Jackson not appearing at the pre-trial conference and then being assessed a second charge of Failing to Appear. Since they are judicial records, they are maintained in my office and not with any other Travis County entity. Each "OMNI" fee is specific to each case which is assessed such a fee. Thus, if a fee exists, it is only maintained with the file to which it is associated.
The trial court granted summary judgment in Biscoe's favor. This appeal followed.
DISCUSSION
In three issues, Jackson complains that the records he seeks are not court records but are the records the county is required to maintain under section 706.007 of the transportation code, that the records are maintained by a private entity for the county and are therefore subject to the Act, and that, as county judge, Biscoe is the appropriate officer for public information requests for the county. Attaching evidence including the affidavit of Justice of the Peace Richard Scott, the county responds that the records sought are records of the judiciary and the Act does not govern access to records of the judiciary.
Standard of Review
We review a summary judgment de novo, Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004), and employ well-established standards of review: (1) the movant must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether a disputed issue of material fact exists that would preclude summary judgment, we take all evidence favorable to the non-movant as true; and (3) we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Id.; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Whether information is subject to the Act and whether an exception to disclosure applies to the information are questions of law. See City of Garland v. The Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000) (citing A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995)).
The Texas Public Information Act
The Texas Public Information Act is intended to promote openness in government and ensure that the governed are entitled to complete information about actions taken by public officials and employees. See Tex. Gov't Code Ann. § 552.001(a) (West 2004). The purpose of the Act is to provide public access "at all times to complete information about the affairs of government and the official acts of public officials and employees." See id. At the heart of the Act is the principle that the public is entitled to all information that is collected, assembled, or maintained by or for a governmental body. Id. § 552.002(a) (West 2004); Holmes v. Morales, 924 S.W.2d 920, 922 (Tex. 1996). The Act does not limit the availability of public information except as expressly provided. See Tex. Gov't Code Ann. § 552.006 (West 2004); Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 157 (Tex. App.--Austin 2001, no pet.). In addition, the Act provides examples of specific categories of public information that may not be withheld unless expressly made confidential by other law. See Tex. Gov't Code Ann. § 552.022 (West 2004); In re City of Georgetown, 53 S.W.3d 328, 331 (Tex. 2001).
Section 552.0035 of the Act provides that "access to information collected, assembled, or maintained by or for the judiciary is governed by the rules adopted by the Supreme Court of Texas or by other applicable laws and rules." Tex. Gov't Code Ann. § 552.0035 (West 2004). The county's summary judgment evidence included the affidavit of Justice of the Peace Richard Scott in which Scott averred that the records at issue in this case are judicial records created in the judicial process and maintained by his office. This evidence is uncontroverted. (3) In the absence of controverting evidence, we conclude the records sought by Jackson are "information collected, assembled, or maintained by or for the judiciary" and that public access to them is not governed by the Act. See Abbott v. State Bar of Texas, No. 03-06-00592-CV, 2007 Tex. App. LEXIS 7232, *9 (Tex. App.--Austin Aug. 31, 2007, no pet. h.) (public access to information "collected, assembled, or maintained by or for the judiciary" is not governed by the Public Information Act, but by rules adopted by the Supreme Court of Texas or other applicable laws or rules). Consequently, Jackson is not entitled to access to the records at issue in this case pursuant to the Public Information Act as alleged in his petition for mandamus. (4)
CONCLUSION
We overrule Jackson's issues on appeal and affirm the trial court's judgment
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: October 2, 2007
1. Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004 & Supp. 2006).
2. Tex. Gov't Code Ann. § 552.301 (West Supp. 2006); see In re City of Georgetown, 53 S.W.3d 328, 329-30 (Tex. 2001).
3. Although Jackson disputes that the records are collected, assembled, or maintained by or for the judiciary, he does not controvert the testimony in Scott's affidavit. Jackson asserts that the records are physically maintained by a third party vendor and subject to disclosure under the Public Information Act from the vendor through Judge Biscoe. Whether the records are physically maintained by a third party vendor or physically maintained by the justice court is not relevant to the analysis. Information maintained by someone other than the judiciary for the judiciary comes within the ambit of section 552.0035. See Tex. Gov't Code Ann. § 552.0035 (West 2004).
4. The county suggests that access to these records may be governed by Rule 12 of the Rules of Judicial Administration. But whether and to what extent Rule 12 applies to these records must be determined pursuant to the procedures set forth in Rule 12 and an inquiry made pursuant to Rule 12. See Abbott v. State Bar of Texas, No. 03-06-00592-CV, 2007 Tex. App. LEXIS 7232, *9 (Tex. App.--Austin Aug. 31, 2007, no pet. h.). We do not reach this question in light of our holding that public access to the records at issue is not governed by the Act.
Samuel T. Jackson v. Samuel T. Biscoe, in his official capacity as Travis County Judge; Travis County; and the Travis County Commissioner's Court, No. 03-06-00602-CV (Tex.App.- Austin, Oct. 2, 2007)(Opinion by Justice Patterson)(Public Information Act, judicial records exception)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 126th District Court of Travis County
Disposition: Affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-05-003745, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Samuel T. Jackson filed a petition for writ of mandamus under the Public Information Act (1) in the district court, seeking to compel Samuel T. Biscoe, in his official capacity as Travis County Judge, to disclose reports of administrative fees collected in connection with certain proceedings. Biscoe moved for summary judgment, asserting that Jackson's request sought records of the judiciary, not records in Biscoe's custody, and such records are therefore not subject to the Act. The trial court granted summary judgment in favor of Biscoe, and Jackson appeals. For the reasons stated, we affirm the judgment.
BACKGROUND
The Controversy
On May 16, 2005, Jackson sent an electronically transmitted request to Travis County for information under the Public Information Act, seeking reports for the previous four years of administrative fees collected in connection with certain judicial proceedings, including but not limited to the following information: (1) the name and address of each person against whom a fee was assessed; (2) the style, number, and date of each case in which a fee was assessed; (3) the nature and date of each violation for which each fee was assessed; (4) the amount of the fee assessed, and the amount collected; and (5) the nature and date of each case in which no fee was required due to dismissal, acquittal, or error pursuant to section 706.005(b) of the transportation code. See Tex. Transp. Code Ann. §§ 706.005(b), .006 (West Supp. 2006).
The county did not solicit an opinion from the Texas attorney general (2) but responded to the request, claiming that Biscoe's office did not possess any records responsive to the request or that the documents were not accessible to Biscoe: "Please be informed that Judge Biscoe's office does not have the information you requested." Because the county concluded that the requested records included court records, an assistant county attorney referred Jackson to the justices of the peace in the county: "You may want to check with the Justices of the Peace in Travis County to see if they maintain the information you are seeking." In a separate communication, the assistant county attorney advised Jackson that the justice of the peace courts submit the information electronically to OmniBase Services of Texas, a private vendor, that maintains the information and produces a report on the program to which the "justice of the peace courts have access." The county also referred Jackson to OmniBase Services of Texas, the vendor that maintains and administers the records of fees collected pursuant to the program authorized by the legislature. The county provided Jackson with copies of contracts between Travis County and the Texas Department of Public Safety ("TDPS" or the "department") and between the department and OmniBase "to assist in the implementation of chapter 706," the Failure To Appear ("FTA") program.
With regard to the FTA information provided by the county or other local political subdivision, paragraph VIII of the contract provides:
If the person fails to appear or fails to pay or satisfy a judgment as required by law, the local political subdivision may submit an FTA report containing the following information:
(1) the jurisdiction in which the alleged offense occurred;
(2) the name of the local political subdivision submitting the report;
(3) the name, date of birth and Texas driver license number of the person who failed to appear or failed to pay or satisfy a judgment;
(4) the date of the alleged violation;
(5) a brief description of the alleged violation;
(6) a statement that the person failed to appear or failed to pay or satisfy a judgment as required by law;
(7) the date that the person failed to appear or failed to pay or satisfy a judgment; and
(8) any other information required by the TDPS.
* * *
The local political subdivision must make reasonable efforts to ensure that all FTA Reports are accurate, complete and non-duplicative.
Under the contract, the originating court that files the report has a continuing obligation to review and correct or supplement the report.
The Lawsuit
In October 2005, Jackson filed an original petition for writ of mandamus pursuant to section 552.321 of the Public Information Act, seeking to compel Biscoe in his official capacity as county judge to provide Jackson with copies of any reports prepared during the last four years concerning administrative fees collected by Travis County Justices of the Peace pursuant to section 706.006 of the Texas Transportation Code. See Tex. Gov't Code Ann. § 552.321 (West 2004); Tex. Transp. Code Ann. § 706.006. In his original answer, Biscoe asserted official, qualified, and absolute immunity. In an amended answer Biscoe asserted that the requested records were records of the judiciary and therefore not governed by the Act. Both parties filed motions for summary judgment.
In his summary judgment motion, Biscoe asserted that Richard Scott, Justice of the Peace for Travis County precinct 1, is the proper custodian of the records, and that the records are judicial records relating to the civil or criminal litigation in Judge Scott's court and are not public records under the Act. Biscoe attached to his motion the following documents: Jackson's e-mail correspondence with the county, a computer printout and an order for pre-trial conference relating to Jackson's own case before the justice of the peace, a court document relating to Jackson's failure to appear before the justice of the peace, and the affidavit of Judge Scott. In his affidavit, Scott averred that he is the custodian of judicial records relating to civil and criminal litigation:
On or about October 22, 2001, Samuel T. Jackson was assessed a speeding ticket in Travis County. He pled not guilty and was ordered to appear for a pre-trial disposition conference on September 25, 2002. Mr. Jackson failed to appear on that date or to advise the court that he would not be able to appear. As a result, on June 3, 2003, Mr. Jackson was charged with Failing to Appear. As a result, he was assessed two individual "OMNI" fees . . . .
The records relating to the "OMNI" fees assessed against Mr. Jackson are part of the judicial records relating to the criminal litigation created as a result of Mr. Jackson not appearing at the pre-trial conference and then being assessed a second charge of Failing to Appear. Since they are judicial records, they are maintained in my office and not with any other Travis County entity. Each "OMNI" fee is specific to each case which is assessed such a fee. Thus, if a fee exists, it is only maintained with the file to which it is associated.
The trial court granted summary judgment in Biscoe's favor. This appeal followed.
DISCUSSION
In three issues, Jackson complains that the records he seeks are not court records but are the records the county is required to maintain under section 706.007 of the transportation code, that the records are maintained by a private entity for the county and are therefore subject to the Act, and that, as county judge, Biscoe is the appropriate officer for public information requests for the county. Attaching evidence including the affidavit of Justice of the Peace Richard Scott, the county responds that the records sought are records of the judiciary and the Act does not govern access to records of the judiciary.
Standard of Review
We review a summary judgment de novo, Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004), and employ well-established standards of review: (1) the movant must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether a disputed issue of material fact exists that would preclude summary judgment, we take all evidence favorable to the non-movant as true; and (3) we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Id.; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Whether information is subject to the Act and whether an exception to disclosure applies to the information are questions of law. See City of Garland v. The Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000) (citing A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995)).
The Texas Public Information Act
The Texas Public Information Act is intended to promote openness in government and ensure that the governed are entitled to complete information about actions taken by public officials and employees. See Tex. Gov't Code Ann. § 552.001(a) (West 2004). The purpose of the Act is to provide public access "at all times to complete information about the affairs of government and the official acts of public officials and employees." See id. At the heart of the Act is the principle that the public is entitled to all information that is collected, assembled, or maintained by or for a governmental body. Id. § 552.002(a) (West 2004); Holmes v. Morales, 924 S.W.2d 920, 922 (Tex. 1996). The Act does not limit the availability of public information except as expressly provided. See Tex. Gov't Code Ann. § 552.006 (West 2004); Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 157 (Tex. App.--Austin 2001, no pet.). In addition, the Act provides examples of specific categories of public information that may not be withheld unless expressly made confidential by other law. See Tex. Gov't Code Ann. § 552.022 (West 2004); In re City of Georgetown, 53 S.W.3d 328, 331 (Tex. 2001).
Section 552.0035 of the Act provides that "access to information collected, assembled, or maintained by or for the judiciary is governed by the rules adopted by the Supreme Court of Texas or by other applicable laws and rules." Tex. Gov't Code Ann. § 552.0035 (West 2004). The county's summary judgment evidence included the affidavit of Justice of the Peace Richard Scott in which Scott averred that the records at issue in this case are judicial records created in the judicial process and maintained by his office. This evidence is uncontroverted. (3) In the absence of controverting evidence, we conclude the records sought by Jackson are "information collected, assembled, or maintained by or for the judiciary" and that public access to them is not governed by the Act. See Abbott v. State Bar of Texas, No. 03-06-00592-CV, 2007 Tex. App. LEXIS 7232, *9 (Tex. App.--Austin Aug. 31, 2007, no pet. h.) (public access to information "collected, assembled, or maintained by or for the judiciary" is not governed by the Public Information Act, but by rules adopted by the Supreme Court of Texas or other applicable laws or rules). Consequently, Jackson is not entitled to access to the records at issue in this case pursuant to the Public Information Act as alleged in his petition for mandamus. (4)
CONCLUSION
We overrule Jackson's issues on appeal and affirm the trial court's judgment
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: October 2, 2007
1. Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004 & Supp. 2006).
2. Tex. Gov't Code Ann. § 552.301 (West Supp. 2006); see In re City of Georgetown, 53 S.W.3d 328, 329-30 (Tex. 2001).
3. Although Jackson disputes that the records are collected, assembled, or maintained by or for the judiciary, he does not controvert the testimony in Scott's affidavit. Jackson asserts that the records are physically maintained by a third party vendor and subject to disclosure under the Public Information Act from the vendor through Judge Biscoe. Whether the records are physically maintained by a third party vendor or physically maintained by the justice court is not relevant to the analysis. Information maintained by someone other than the judiciary for the judiciary comes within the ambit of section 552.0035. See Tex. Gov't Code Ann. § 552.0035 (West 2004).
4. The county suggests that access to these records may be governed by Rule 12 of the Rules of Judicial Administration. But whether and to what extent Rule 12 applies to these records must be determined pursuant to the procedures set forth in Rule 12 and an inquiry made pursuant to Rule 12. See Abbott v. State Bar of Texas, No. 03-06-00592-CV, 2007 Tex. App. LEXIS 7232, *9 (Tex. App.--Austin Aug. 31, 2007, no pet. h.). We do not reach this question in light of our holding that public access to the records at issue is not governed by the Act.
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