Supreme Court decision puts PIA requestors in stronger position

By JOSEPH R. LARSEN Segwick, LLP The Texas Supreme Court has given requestors significantly greater leverage in dealing with governmental bodies that utilize requests for ruling to the attorney general as a way to delay release of clearly public information. In its opinion in the case of Kallinen v. City of Houston, the court reversed and remanded the First Court of Appeals’ very problematic decision dismissing a case brought by two attorneys who had sought documents in connection with a study on the City of Houston’s red light cameras. Notably, these attorneys obtained documents in the suit that they then used to launch a successful referendum repealing the camera ordinance. They were also awarded over $90,000 in attorney’s fees, and only after the fee award, the City filed a “plea to the jurisdiction” on grounds the attorneys had brought the suit as soon as the City had requested an attorney general ruling instead of waiting until the ruling had been issued. The attorney general has 45 working days to issue its ruling, which translates into well over two months of calendar time. Flaws in previous ruling The Kallinen opinion identified several “flaws” in the court of appeals’ holding that a trial court lacks subject matter jurisdiction over a suit for mandamus against a governmental body until such time as the Attorney General has ruled. First, the Supreme Court rejected the court of appeals’ holding (and the City’s argument on appeal) on grounds that it equates information that is public information with information that has been determined by the attorney general must be released. The court said this would conflate two of the three grounds for mandamus jurisdiction. In this regard, Kallinen notes that the court of appeals ignored prior Supreme Court precedent cases allowing judicial review of attorney general rulings made in favor of the governmental bodies. Second, Kallinen holds that a proceeding before the attorney general is not a remedy to exhaust, it is a check on the governmental body. Third, the opinion holds that just because a governmental body seeks an attorney general ruling, there is no inference that the governmental body’s claim of exception is correct. This is a particularly important part of the holding because governmental bodies have a built in advantage before the attorney general in that the attorney general cannot determine issues of fact. Thus, we frequently see letter rulings relying on the factual assertions of the very governmental body from which the information is sought, and, while the requestor can file comments with the attorney general, it is difficult for the requestor to challenge these factual assertions. Requestors position strengthened The Kallinen opinion sets out specifically that while the governmental body is entitled to “insist on its position to a final ruling, . . . a requestor is not required to defer a suit for mandamus.” As a result of the holdings in Kallinen, where the governmental body’s factual assertions to the attorney general appear without merit, as well as where a governmental body is simply wrong in its legal argument regarding an exception to the Public Information Act, the requestor is in a position to threaten immediate suit with a much stronger chance of obtaining fees. Of course, the requestor must still “substantially prevail” to be entitled to fees. The Court concluded by holding that if the trial court “determines under the circumstances of a particular case, a decision from the Attorney General before adjudication of the merits of disclosure would be beneficial and any delay would not impinge on a requestor’s right to information, abatement would be within the court’s discretions,” but that the court of appeals erred in dismissing the case for want of jurisdiction. The statement on abatement is important in that the Court sets out that the trial court must consider whether abatement would “impinge on a requestor’s right to information” as part of its analysis.