By Stephen R. Fogle

The Texas Public Information Act allows ten days for a governmental entity to request an Attorney General’s opinion on documents the entity argues are exempt from production. The Texas Supreme Court ruled last week that, under certain circumstances, the ten-day period begins to run after a good faith request for, and receipt of, a clarification or narrower request from the originator.

In City of Dallas v. Greg Abbott, a citizen, James Hill, requested “any and all information pertaining to the City of Dallas 'assessment center process' for uniform positions of the Dallas Fire and Police Departments; the definition of KG/BRG; and any and all memos, directives, documents and communications of meetings of (scheduled or unscheduled) boards, councils, department heads/staff, and city managers pertaining to the establishment of the assessment center process.”

Within the first ten days, the City asked Hill to identify the specific assessment centers as well as the relevant time period. Hill clarified his request within six days and, within ten days thereafter, the City responded that certain portions of the information were exempt from production as attorney client privileged information and requested an opinion from the Attorney General on whether the documents could be withheld. The Attorney General denied the request as untimely since it was made more than ten days after the City received the original request from Hill.  The Seventh Court of Appeals agreed and upheld the Attorney General's calculation under the plain language of the Public Information Act.

In a 6-2 decision, with one abstention, the Texas Supreme Court reversed and held that the ten-day period to request the Attorney General’s opinion began after the City received the clarified request. The Court acknowledged that while the Public Information Act is silent on this point, the statute contemplates the governmental entity being able to identify the documents being requested before the entity can decide whether to request an opinion from the Attorney General. Analogizing to other portions of the Act, the Court concluded that the ten-day period only makes sense if the government entity is given a clear request for information. The Supreme Court was sensitive to the potential for abuse, emphasizing here that the parties were acting in good faith, as evidenced by the City making one request for clarification after which they offered the responsive documents and sought the Attorney General’s opinion on a smaller, limited set of documents.

This decision does not alter the government’s obligation to produce public documents. Rather, it underscores the ever-present need to make all Public Information Act requests as direct, specific, and narrow as possible to limit the ability of a governmental entity to delay production. It should also alert us to be persistent and timely in responding to any good faith requests for clarification from those who gather and store our public information.  Don't ignore a good faith request for more details as the count to ten may only begin when they receive your revised request.

If you have any questions regarding this e-Alert, please contact Stephen Fogle at 210.978.7720 or sfogle@jw.com.