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.
Showing posts with label Public Information Act. Show all posts
Showing posts with label Public Information Act. Show all posts
Tuesday, December 11, 2007
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.
Friday, August 31, 2007
Interagency strife: State Bar and AG battle over confidentiality and applicability of open records act
Abbott v. State Bar of Texas (SBOT) (Tex.App.- Austin, Aug. 31, 2006)
HOLDING: The Third Court of Appeals concludes that public access to an attorney's residential address, home phone number, date of birth, and internal database identifier number maintained by the State Bar of Texas is not governed by the Public Information Act pursuant to the provisions of section 552.0035. Rather, access to such information is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules. Accordingly, the appellate panel reverses the judgment of the district court and remand the case for further proceedings consistent with its opinion.
Appellant, Greg Abbott, Attorney General of Texas // Cross-Appellant, State Bar of Texas v. Appellee, State Bar of Texas// Cross-Appellee, Attorney General of Texas, No. 03-06-00592-CV (Tex.App.- Austin, Aug. 31, 2007)(Opinion by Justice Waldrop)(SBOT records on attorneys, Open Records Act, Public Information Act)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 353rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GV-04-003520, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
OPINION BY JUSTICE G. ALAN WALDROP
This appeal concerns an open records request to the State Bar of Texas to disclose personal information about an attorney licensed by the Texas Supreme Court, including the attorney's name, home address, home telephone number, date of birth, and an internal database identifier number used by the State Bar. (1) The State Bar objected to disclosing this personal information and sought declaratory relief from the district court that the information was not subject to disclosure under the Texas Public Information Act. On cross-motions for summary judgment, the district court ruled that (1) the information requested is not maintained for the judiciary and, therefore, is subject to the provisions of the Public Information Act, and (2) the requested information is confidential and, therefore, excepted from disclosure under the terms of the Public Information Act. See Tex. Gov't Code Ann. § 552.101 (West 2004).
Both parties appealed. The State Bar contends that the district court erred in finding that access to the requested information is governed by the Public Information Act, as opposed to Rule 12 of the Rules of Judicial Administration, because the information is maintained by the State Bar for the judiciary. See Tex. Gov't Code Ann. § 552.0035 (West 2004). The Attorney General contends that the district court erred in finding that the information is confidential under the Public Information Act and, thus, exempt from disclosure under the Act. We conclude as a matter of law that the State Bar maintains the requested information for the judiciary and, therefore, the request for information is not governed by the Public Information Act. Rather, the request is governed by "rules adopted by the Supreme Court of Texas or by other applicable laws and rules." Accordingly, we reverse the judgment of the district court and remand this cause for further proceedings.
Factual and Procedural Background
On July 12, 2004, a private citizen sent an open records request to the State Bar seeking, among other information, the home address, telephone number, date of birth, and internal identification number (2) of an attorney licensed by the Texas Supreme Court. The State Bar objected to disclosing this information and sought an open records ruling from the Attorney General arguing that the information was maintained by the State Bar for the judiciary and, therefore, not subject to the Public Information Act, or alternatively, that such "personally identifiable information" was confidential and excepted from disclosure under section 552.101 of the Public Information Act. See Tex. Gov't Code Ann. § 552.101. (3) On October 8, 2004, the Attorney General issued letter ruling OR2004-8551, opining that the requested information was subject to the Public Information Act and that the State Bar may not withhold the requested information as confidential under section 552.101 of the Act.
The State Bar filed the underlying declaratory judgment action against the Attorney General challenging the opinion in letter ruling OR2004-8551. The State Bar then filed a motion for summary judgment arguing that the Public Information Act does not govern access to the requested information because the information is maintained by the State Bar for the judiciary, and alternatively, that if the Public Information Act applies, the information is confidential and excepted from disclosure under the Act. The Attorney General responded with a cross-motion for summary judgment arguing that the requested information is subject to the Public Information Act and is not confidential under section 552.101 as a matter of law.
After hearing the cross-motions for summary judgment and supplemental filings by the parties, the court entered a final judgment (1) denying the State Bar's motion for summary judgment seeking a declaration that the requested information is not subject to the Public Information Act on the basis that it is maintained for the judiciary; (2) granting in part the Attorney General's motion for summary judgment that the requested information is subject to the Public Information Act "except for that part entitled '[Public Information Act] Sec[tion] 552.101 Has No Applicability to the Bar's Membership Records,'" which was denied; and (3) granting the State Bar's alternative request in its motion for summary judgment that the requested information is confidential under the Public Information Act, and therefore, exempt from disclosure. In short, the district court concluded that the requested information was subject to the Public Information Act but protected from disclosure by the confidentiality provisions of section 552.101.
On appeal, the Attorney General argues that the district court erred by denying the part of his motion for summary judgment concerning the applicability of section 552.101 and by granting the State Bar's motion for summary judgment on that issue. He asks this Court to render judgment that the requested information is not confidential under section 552.101 of the Public Information Act and is subject to disclosure. The State Bar, on the other hand, argues that the district court erred in denying its motion for summary judgment on the issue of whether the requested information is subject to disclosure or nondisclosure pursuant to the provisions of the Public Information Act. The State Bar asks this Court to render judgment that it maintains its membership records "for the judiciary" such that under section 552.0035 of the Public Information Act, access to the requested information is governed by Rule 12 of the Rules of Judicial Administration as opposed to the Public Information Act. (4)
Standard of Review
We review the summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). The standards for reviewing a summary judgment are well established: (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. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
When, as here, both parties file motions for summary judgment and the court denies both in part and grants both in part, we must review the summary judgment evidence presented by both sides, decide all questions presented, and render the judgment that the trial court should have rendered. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). Whether information is subject to the Public Information Act and whether an exception to disclosure applies to the information are questions of law. Id. (citing A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995)).
Application of the Public Information Act
The purpose of the Public Information Act is to provide public access "to complete information about the affairs of the government and the official acts of public officials and employees." Tex. Gov't Code Ann. § 552.001 (West 2004). The Act applies to any information "that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." Id. § 552.002 (West 2004). Neither the State Bar nor the judiciary is included in the Public Information Act's definition of "governmental body." See id. § 552.003 (West 2004). However, the State Bar Act, located in chapter 81 of the government code, provides that "all records of the state bar . . . are subject to Chapter 552 [Public Information Act]." Id. § 81.033 (West 2005). Therefore, we look to Chapter 552 for direction on how to address requests for access to State Bar records.
Section 552.0035 of the Public Information 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." Id. § 552.0035.
This provision must be read in harmony with section 81.033 of the State Bar Act. Section 81.033 directs us to chapter 552 (the Public Information Act) for rules governing disclosure of State Bar records. Section 552.0035 further refines statutory direction for disclosure of certain portions of the State Bar's records. Specifically, under the terms of section 552.0035, if the State Bar collects, assembles, or maintains any information for the judiciary, public access to that information is governed by laws and rules other than the Act, i.e., the rules promulgated by the supreme court governing access to the records of the judiciary or "other applicable laws and rules." We must decide in this appeal whether the information requested from the records of the State Bar at issue in this case--an attorney's home address, home telephone number, date of birth, and the State Bar's internal database identifier number--is "information collected, assembled, or maintained for the judiciary." Id.
The State Bar is an administrative agency of the judicial department of the government. Id. § 81.011 (West 2005). The Supreme Court of Texas, on behalf of the judicial department, exercises administrative control over the State Bar. Id. Under the State Bar Rules, which are promulgated by the Texas Supreme Court, each person who becomes licensed to practice law must enroll in the State Bar. Tex. State Bar R. art. III, § 2, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (West 2005). To enroll in the State Bar, each person must file with the clerk of the Texas Supreme Court an enrollment form stating their name, permanent place of residence, principal place of practice, and such other information as may be required by the clerk. See id. Upon receiving this information plus certain required fees, the clerk enters that person's name on the membership rolls and issues an appropriate membership card. See Tex. State Bar R. art. III, § 4. Although membership in the State Bar is a requirement for attorneys licensed to practice law in Texas, the Texas Supreme Court has the exclusive and nondelegable authority to issue licenses to practice law in this state. See Tex. Gov't Code Ann. § 82.021 (West 2005). Under the State Bar Act, which was enacted in aid of the judicial department's powers under the constitution to regulate the practice of law, the executive director of the State Bar "shall maintain the membership files [of the State Bar] and shall confer with the clerk of the supreme court as to the maintenance of those files." Tex. Gov't Code Ann. §§ 81.011, .029 (West 2005). Neither the officers and directors of the State Bar nor the clerk of the Texas Supreme Court have discretion to change the membership status of licensed attorneys who are members of the State Bar. See In re Jones, 978 S.W.2d 648, 653 (Tex. App.--Amarillo 1998, no pet.).
Thus, gathering information from individuals to enroll them as members of the State Bar and recording changes in individuals' membership status are ministerial acts performed by the State Bar and the clerk of the Texas Supreme Court on behalf of the Texas Supreme Court. See id.
This statutory scheme requires the clerk of the Texas Supreme Court to collect, and the State Bar to maintain, information about licensed attorneys in the State Bar's membership records for the Texas Supreme Court. This information and the records containing the information are ultimately the responsibility of and under the control of the Texas Supreme Court. Thus, we conclude that the information requested from the State Bar and at issue in this case falls within the purview of section 552.0035 as "information collected, assembled, or maintained by or for the judiciary." Tex. Gov't Code Ann. § 552.0035. Accordingly, under section 552.0035, public access to this information is not governed by chapter 552, but "by rules adopted by the Texas Supreme Court or by other applicable laws and rules." Id.
Rule 12 of the Rules of Judicial Administration
The State Bar contends that public access to the requested information is governed by Rule 12 of the Rules of Judicial Administration and that the trial court erred in failing to grant a declaration to this effect. (5) The Attorney General argues that Rule 12 does not govern access to the information requested in this case as a matter of law because section 81.033 of the government code provides that all records of the State Bar are subject to the Public Information Act and because Rule 12 provides that it does not apply to records or information to which access is controlled by the Act. See Tex. R. Jud. Admin 12.3(a)(4).
Whether or to what extent Rule 12 applies to the information at issue in this case will be determined pursuant to the procedures set forth in Rule 12 based on an inquiry made pursuant to Rule 12. Our holding that access to the information at issue in this case is not governed by the Public Information Act, but by "rules adopted by the Supreme Court of Texas or by other applicable laws and rules" pursuant to section 552.0035 is dispositive of this case.
Conclusion
We conclude that public access to an attorney's home address, home telephone number, date of birth, and internal database identifier number maintained by the State Bar is not governed by the Public Information Act pursuant to the provisions of section 552.0035. Rather, access to such information is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules. Accordingly, we reverse the judgment of the district court and remand this cause for further proceedings consistent with this opinion.
__________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Reversed and Remanded
Filed: August 31, 2007
1. It is undisputed that the requested information is contained in records maintained by the State Bar.
2. The State Bar assigns "internal identification numbers" to every attorney licensed by the Texas Supreme Court. It uses these numbers to access and maintain files on individual attorneys in a computer database. This identification number is unique to the State Bar's database and used only as a tool for storing and accessing information in that database.
3. The Public Information Act specifically excepts certain public information from required disclosure. See Tex. Gov't Code Ann. §§ 552.101-.123 (West 2004 & Supp. 2006). Section 552.101, entitled "Exception: Confidential Information," provides:
Information is excepted from the 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 (West 2004).
4. Section 552.0035 of the Texas Public Information Act, entitled "Access to Information of Judiciary," provides:
(a) Access to information collected, assembled, or maintained by or for the judiciary is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules.
(b) This section does not address whether information is considered to be information collected, assembled, or maintained by or for the judiciary.
Tex. Gov't Code Ann. § 552.0035 (West 2004).
5. The Rules of Judicial Administration are promulgated by the Texas Supreme Court for the operation and management of the court system and for the efficient administration of justice. Tex. Gov't Code Ann. § 74.024 (West 2005). Rule 12 of the Rules of Judicial Administration is entitled "Public Access to Judicial Records," and it provides that "the purpose of this rule is to provide public access to the information in the judiciary consistent with the mandates of the Texas Constitution that the public interests are best served by open courts and by an independent judiciary." Tex. R. Jud. Admin. 12.1. The rule governs access to "judicial records," which are defined as records "made or maintained by or for a court or judicial agency in its regular course of business but not pertaining to its adjudicative function . . . ." Id. 12.2(d).
HOLDING: The Third Court of Appeals concludes that public access to an attorney's residential address, home phone number, date of birth, and internal database identifier number maintained by the State Bar of Texas is not governed by the Public Information Act pursuant to the provisions of section 552.0035. Rather, access to such information is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules. Accordingly, the appellate panel reverses the judgment of the district court and remand the case for further proceedings consistent with its opinion.
Appellant, Greg Abbott, Attorney General of Texas // Cross-Appellant, State Bar of Texas v. Appellee, State Bar of Texas// Cross-Appellee, Attorney General of Texas, No. 03-06-00592-CV (Tex.App.- Austin, Aug. 31, 2007)(Opinion by Justice Waldrop)(SBOT records on attorneys, Open Records Act, Public Information Act)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 353rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GV-04-003520, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
OPINION BY JUSTICE G. ALAN WALDROP
This appeal concerns an open records request to the State Bar of Texas to disclose personal information about an attorney licensed by the Texas Supreme Court, including the attorney's name, home address, home telephone number, date of birth, and an internal database identifier number used by the State Bar. (1) The State Bar objected to disclosing this personal information and sought declaratory relief from the district court that the information was not subject to disclosure under the Texas Public Information Act. On cross-motions for summary judgment, the district court ruled that (1) the information requested is not maintained for the judiciary and, therefore, is subject to the provisions of the Public Information Act, and (2) the requested information is confidential and, therefore, excepted from disclosure under the terms of the Public Information Act. See Tex. Gov't Code Ann. § 552.101 (West 2004).
Both parties appealed. The State Bar contends that the district court erred in finding that access to the requested information is governed by the Public Information Act, as opposed to Rule 12 of the Rules of Judicial Administration, because the information is maintained by the State Bar for the judiciary. See Tex. Gov't Code Ann. § 552.0035 (West 2004). The Attorney General contends that the district court erred in finding that the information is confidential under the Public Information Act and, thus, exempt from disclosure under the Act. We conclude as a matter of law that the State Bar maintains the requested information for the judiciary and, therefore, the request for information is not governed by the Public Information Act. Rather, the request is governed by "rules adopted by the Supreme Court of Texas or by other applicable laws and rules." Accordingly, we reverse the judgment of the district court and remand this cause for further proceedings.
Factual and Procedural Background
On July 12, 2004, a private citizen sent an open records request to the State Bar seeking, among other information, the home address, telephone number, date of birth, and internal identification number (2) of an attorney licensed by the Texas Supreme Court. The State Bar objected to disclosing this information and sought an open records ruling from the Attorney General arguing that the information was maintained by the State Bar for the judiciary and, therefore, not subject to the Public Information Act, or alternatively, that such "personally identifiable information" was confidential and excepted from disclosure under section 552.101 of the Public Information Act. See Tex. Gov't Code Ann. § 552.101. (3) On October 8, 2004, the Attorney General issued letter ruling OR2004-8551, opining that the requested information was subject to the Public Information Act and that the State Bar may not withhold the requested information as confidential under section 552.101 of the Act.
The State Bar filed the underlying declaratory judgment action against the Attorney General challenging the opinion in letter ruling OR2004-8551. The State Bar then filed a motion for summary judgment arguing that the Public Information Act does not govern access to the requested information because the information is maintained by the State Bar for the judiciary, and alternatively, that if the Public Information Act applies, the information is confidential and excepted from disclosure under the Act. The Attorney General responded with a cross-motion for summary judgment arguing that the requested information is subject to the Public Information Act and is not confidential under section 552.101 as a matter of law.
After hearing the cross-motions for summary judgment and supplemental filings by the parties, the court entered a final judgment (1) denying the State Bar's motion for summary judgment seeking a declaration that the requested information is not subject to the Public Information Act on the basis that it is maintained for the judiciary; (2) granting in part the Attorney General's motion for summary judgment that the requested information is subject to the Public Information Act "except for that part entitled '[Public Information Act] Sec[tion] 552.101 Has No Applicability to the Bar's Membership Records,'" which was denied; and (3) granting the State Bar's alternative request in its motion for summary judgment that the requested information is confidential under the Public Information Act, and therefore, exempt from disclosure. In short, the district court concluded that the requested information was subject to the Public Information Act but protected from disclosure by the confidentiality provisions of section 552.101.
On appeal, the Attorney General argues that the district court erred by denying the part of his motion for summary judgment concerning the applicability of section 552.101 and by granting the State Bar's motion for summary judgment on that issue. He asks this Court to render judgment that the requested information is not confidential under section 552.101 of the Public Information Act and is subject to disclosure. The State Bar, on the other hand, argues that the district court erred in denying its motion for summary judgment on the issue of whether the requested information is subject to disclosure or nondisclosure pursuant to the provisions of the Public Information Act. The State Bar asks this Court to render judgment that it maintains its membership records "for the judiciary" such that under section 552.0035 of the Public Information Act, access to the requested information is governed by Rule 12 of the Rules of Judicial Administration as opposed to the Public Information Act. (4)
Standard of Review
We review the summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). The standards for reviewing a summary judgment are well established: (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. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
When, as here, both parties file motions for summary judgment and the court denies both in part and grants both in part, we must review the summary judgment evidence presented by both sides, decide all questions presented, and render the judgment that the trial court should have rendered. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). Whether information is subject to the Public Information Act and whether an exception to disclosure applies to the information are questions of law. Id. (citing A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995)).
Application of the Public Information Act
The purpose of the Public Information Act is to provide public access "to complete information about the affairs of the government and the official acts of public officials and employees." Tex. Gov't Code Ann. § 552.001 (West 2004). The Act applies to any information "that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." Id. § 552.002 (West 2004). Neither the State Bar nor the judiciary is included in the Public Information Act's definition of "governmental body." See id. § 552.003 (West 2004). However, the State Bar Act, located in chapter 81 of the government code, provides that "all records of the state bar . . . are subject to Chapter 552 [Public Information Act]." Id. § 81.033 (West 2005). Therefore, we look to Chapter 552 for direction on how to address requests for access to State Bar records.
Section 552.0035 of the Public Information 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." Id. § 552.0035.
This provision must be read in harmony with section 81.033 of the State Bar Act. Section 81.033 directs us to chapter 552 (the Public Information Act) for rules governing disclosure of State Bar records. Section 552.0035 further refines statutory direction for disclosure of certain portions of the State Bar's records. Specifically, under the terms of section 552.0035, if the State Bar collects, assembles, or maintains any information for the judiciary, public access to that information is governed by laws and rules other than the Act, i.e., the rules promulgated by the supreme court governing access to the records of the judiciary or "other applicable laws and rules." We must decide in this appeal whether the information requested from the records of the State Bar at issue in this case--an attorney's home address, home telephone number, date of birth, and the State Bar's internal database identifier number--is "information collected, assembled, or maintained for the judiciary." Id.
The State Bar is an administrative agency of the judicial department of the government. Id. § 81.011 (West 2005). The Supreme Court of Texas, on behalf of the judicial department, exercises administrative control over the State Bar. Id. Under the State Bar Rules, which are promulgated by the Texas Supreme Court, each person who becomes licensed to practice law must enroll in the State Bar. Tex. State Bar R. art. III, § 2, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (West 2005). To enroll in the State Bar, each person must file with the clerk of the Texas Supreme Court an enrollment form stating their name, permanent place of residence, principal place of practice, and such other information as may be required by the clerk. See id. Upon receiving this information plus certain required fees, the clerk enters that person's name on the membership rolls and issues an appropriate membership card. See Tex. State Bar R. art. III, § 4. Although membership in the State Bar is a requirement for attorneys licensed to practice law in Texas, the Texas Supreme Court has the exclusive and nondelegable authority to issue licenses to practice law in this state. See Tex. Gov't Code Ann. § 82.021 (West 2005). Under the State Bar Act, which was enacted in aid of the judicial department's powers under the constitution to regulate the practice of law, the executive director of the State Bar "shall maintain the membership files [of the State Bar] and shall confer with the clerk of the supreme court as to the maintenance of those files." Tex. Gov't Code Ann. §§ 81.011, .029 (West 2005). Neither the officers and directors of the State Bar nor the clerk of the Texas Supreme Court have discretion to change the membership status of licensed attorneys who are members of the State Bar. See In re Jones, 978 S.W.2d 648, 653 (Tex. App.--Amarillo 1998, no pet.).
Thus, gathering information from individuals to enroll them as members of the State Bar and recording changes in individuals' membership status are ministerial acts performed by the State Bar and the clerk of the Texas Supreme Court on behalf of the Texas Supreme Court. See id.
This statutory scheme requires the clerk of the Texas Supreme Court to collect, and the State Bar to maintain, information about licensed attorneys in the State Bar's membership records for the Texas Supreme Court. This information and the records containing the information are ultimately the responsibility of and under the control of the Texas Supreme Court. Thus, we conclude that the information requested from the State Bar and at issue in this case falls within the purview of section 552.0035 as "information collected, assembled, or maintained by or for the judiciary." Tex. Gov't Code Ann. § 552.0035. Accordingly, under section 552.0035, public access to this information is not governed by chapter 552, but "by rules adopted by the Texas Supreme Court or by other applicable laws and rules." Id.
Rule 12 of the Rules of Judicial Administration
The State Bar contends that public access to the requested information is governed by Rule 12 of the Rules of Judicial Administration and that the trial court erred in failing to grant a declaration to this effect. (5) The Attorney General argues that Rule 12 does not govern access to the information requested in this case as a matter of law because section 81.033 of the government code provides that all records of the State Bar are subject to the Public Information Act and because Rule 12 provides that it does not apply to records or information to which access is controlled by the Act. See Tex. R. Jud. Admin 12.3(a)(4).
Whether or to what extent Rule 12 applies to the information at issue in this case will be determined pursuant to the procedures set forth in Rule 12 based on an inquiry made pursuant to Rule 12. Our holding that access to the information at issue in this case is not governed by the Public Information Act, but by "rules adopted by the Supreme Court of Texas or by other applicable laws and rules" pursuant to section 552.0035 is dispositive of this case.
Conclusion
We conclude that public access to an attorney's home address, home telephone number, date of birth, and internal database identifier number maintained by the State Bar is not governed by the Public Information Act pursuant to the provisions of section 552.0035. Rather, access to such information is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules. Accordingly, we reverse the judgment of the district court and remand this cause for further proceedings consistent with this opinion.
__________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Reversed and Remanded
Filed: August 31, 2007
1. It is undisputed that the requested information is contained in records maintained by the State Bar.
2. The State Bar assigns "internal identification numbers" to every attorney licensed by the Texas Supreme Court. It uses these numbers to access and maintain files on individual attorneys in a computer database. This identification number is unique to the State Bar's database and used only as a tool for storing and accessing information in that database.
3. The Public Information Act specifically excepts certain public information from required disclosure. See Tex. Gov't Code Ann. §§ 552.101-.123 (West 2004 & Supp. 2006). Section 552.101, entitled "Exception: Confidential Information," provides:
Information is excepted from the 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 (West 2004).
4. Section 552.0035 of the Texas Public Information Act, entitled "Access to Information of Judiciary," provides:
(a) Access to information collected, assembled, or maintained by or for the judiciary is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules.
(b) This section does not address whether information is considered to be information collected, assembled, or maintained by or for the judiciary.
Tex. Gov't Code Ann. § 552.0035 (West 2004).
5. The Rules of Judicial Administration are promulgated by the Texas Supreme Court for the operation and management of the court system and for the efficient administration of justice. Tex. Gov't Code Ann. § 74.024 (West 2005). Rule 12 of the Rules of Judicial Administration is entitled "Public Access to Judicial Records," and it provides that "the purpose of this rule is to provide public access to the information in the judiciary consistent with the mandates of the Texas Constitution that the public interests are best served by open courts and by an independent judiciary." Tex. R. Jud. Admin. 12.1. The rule governs access to "judicial records," which are defined as records "made or maintained by or for a court or judicial agency in its regular course of business but not pertaining to its adjudicative function . . . ." Id. 12.2(d).
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