Scott A. Durfee
Every now and again, a governmental body must sue the Attorney General for declaratory relief from compliance with the AG’s decision on PIA requests. Here’s how to do it.
Every year, the Texas Attorney General’s Open Records Division receives thousands of opinion requests from governmental bodies throughout the State of Texas, asking for clarification of their responsibilities under the Public Information Act to release or withhold the information these bodies maintain. As an observer of this process, I admire the work they do—on short statutory deadlines, the Attorney General’s staff quickly and efficiently process the opinion requests and issue well-reasoned decisions. It’s pretty amazing that, under that kind of pressure, the Attorney General’s staff reaches the right conclusions in the vast majority of the cases.
But sometimes they don’t. And that’s when a governmental body has a really hard decision to make. The governmental body can acquiesce to a decision that appears to be incorrect and publicly release the information at issue. Or the governmental body can sue the Attorney General for declaratory relief from compliance with the AG’s decision.1
Suing the Attorney General is the only way to get relief from an adverse letter opinion.2 It is also an element3 of an affirmative defense in a criminal prosecution for refusing to provide access to or copying of public information. Although criminal prosecutions under the Public Information Act are rare, this affirmative defense is a get-out-of-jail-free card that we don’t want to waive in the event that the open government police come knocking on the door.
All of that said, I want to be clear that I am not encouraging anyone to sue the Attorney General. It is very much an uphill battle: The Act requires us to file suit in a Travis County district court,4 and I can assure everyone that the Attorney General has home-court advantage in the byzantine Travis County district court system. Also, if the Attorney General substantially prevails in the suit, the district court has discretion to assess costs of litigation and reasonable attorney’s fees incurred by the Attorney General.5
But … if you believe that you have no choice but to sue, then don’t be intimidated by the process. It’s not as hard as you might think. What follows is my checklist for properly suing the Attorney General in Travis County under §§552.324 and 552.325 of the Public Information Act.
1 Prepare an original petition for declaratory relief. Although it is beyond the scope of this article to counsel readers on what the grounds for declaratory relief should be, the blueprint for the petition should be the original opinion request. This is because we are generally foreclosed from raising any arguments in the Travis County district court that were not raised in the opinion request to the Attorney General.6 (Exception: You can raise exceptions for the first time in the district court that are “based on a requirement of federal law” or that “involve the property or privacy interests of another person.”)7 Note that you do not sue the requestor—the only person you are authorized to sue is the Attorney General.8 If you need examples, please feel free to contact me.
2 Prepare a case information sheet. A civil case information sheet must be completed and submitted when an original petition is filed to initiate a new civil case. The link to Travis County’s version is in Endnote 9.9 Note that this document has to be hand-signed, so you will need to sign and scan it.
3 Prepare a Service Request Form. Obviously, you have to serve the Attorney General with your petition. The Attorney General’s physical address is 300 W. 15th Street, Austin, TX 78701, and his mailing address is P.O. Box 12548, Austin, TX 78711-2548. The link to the Travis County Constable for Precinct 5’s service request form is in Endnote 10.10 Note that you will have to establish an electronic signature with the constable, which you can do by clicking on the red ribbon by the signature block; it creates a pop-up window to establish your credentials.
4 Prepare notice to the requestors. Section 552.325(b) requires you to demonstrate to the district court that you “made a timely good faith effort to inform the requestor, by certified mail or by another written method of notice that requires the return of a receipt” of 1) the existence of the suit, including the subject matter and cause number of the suit and the court in which the suit is filed; 2) the requestor’s right to intervene in the suit or to choose to not participate in the suit; 3) the fact that the suit is against the Attorney General in Travis County district court; and 4) the address and phone number of the Office of the Attorney General. This is easily accomplished with a letter that tracks these four elements.
5 Call the Attorney General’s Office. As a courtesy, you should call the Attorney General’s Administrative Law Division (512/475-4300) and ask to speak to an attorney in Open Records Litigation to let them know you are about to file the petition. When I have sued the Attorney General in the past, they have always appreciated the heads-up, and it’s an opportunity to acquaint them with your sympathetic facts. Do not be adversarial, however—arguing with them is not productive at this stage of the proceedings.
6 E-file documents. When you electronically file your case—as you must in Travis County—the declaratory judgment petition is the primary document, and the case information sheet, the service request form, and any exhibits will be the attachments. Don’t procrastinate: To take advantage of the affirmative defense in §552.353(b), the suit has to be filed “not later than the 10th calendar day after the date of receipt” of the Attorney General’s letter opinion.11
7 Verify filing. To be sure that the documents have been received and filed by the Travis County District Clerk, complete an “Attorney Access to Records Online” form for the password to access the clerk’s electronic system. The link to the clerk’s information page on accessing online records is in Endnote 12.12 If you have any difficulty locating your case, call the Clerk’s Government Litigation Division at 512/854-9457.
If you follow these seven steps, the suit will be filed with, served on, and noticed to the appropriate people. And all you have to do after that is win your case!
1 See Tex. Gov’t Code §552.324.
2 Many years ago, a governmental body could ask the Attorney General to reconsider its decision, but in 1999, the Legislature expressly prohibited governmental bodies from seeking reconsideration of an opinion. See Tex. Gov’t Code §552.301(f).
3 I say “element” because filing the declaratory judgment suit is not the only thing the officer for public information has to prove to perfect the affirmative defense. The officer is also obliged to show that he “reasonably believed that public access to the requested information was not required.” This additional element forecloses the use of this litigation as a bad-faith tactic to delay production of otherwise disclosable information. See Tex. Gov’t Code §552.353(b)(3) (“It is an affirmative defense to prosecution … that the officer for public information reasonably believed that public access to the requested information was not required and that not later than the 10th calendar day after the date of receipt of a decision by the attorney general that the information is public, the officer or the governmental body for whom the defendant is the officer for public information filed a petition for a declaratory judgment against the attorney general in a Travis County district court seeking relief from compliance with the decision of the attorney general, as provided by §552.324, and the cause is pending”).
4 Tex. Gov’t Code §552.324(a)(1).
5 Tex. Gov’t Code §552.323(b); see also Adkisson v. Paxton, 459 S.W.3d 761, 779 (Tex. App.–Austin 2015) (good discussion of trial court’s discretion to award fees).
6 Tex. Gov’t Code §552.326(a).
7 Tex. Gov’t Code §552.326(b).
8 Tex. Gov’t Code §552.324(a)(1).
11 See Tex. Gov’t Code §552.353(b)(3). Note that this deadline is inconsistent with §552.324(b), which gives a governmental body 30 calendar days to file the declaratory judgment action. In 2009, the Legislature resolved this inconsistency by amending §552.324(b) to expressly provide: “If a governmental body wishes to preserve an affirmative defense for its officer for public information as provided in §552.353(b)(3), suit must be filed within the deadline provided in §552.353(b)(3).”
12 http://www.traviscountytx.gov/district-clerk/ public-access.