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San Jacinto River Authority v. Paxton

Court of Appeals of Texas, Third District, Austin

August 22, 2019

San Jacinto River Authority, Appellant
v.
Ken Paxton, Attorney General of Texas, Appellee

          FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-000887, THE HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana

          MEMORANDUM OPINION

          THOMAS J. BAKER, JUSTICE.

         The San Jacinto River Authority (SJRA) appeals the trial court's order granting the Attorney General's plea to the jurisdiction in a case involving the Texas Public Information Act (PIA). See generally Tex. Gov't Code §§ 552.001-.353. The SJRA filed this lawsuit seeking declaratory relief from compliance with the Attorney General's decision that certain documents must be disclosed pursuant to a PIA request. See id. § 552.324 (authorizing suit by governmental body against Attorney General regarding PIA decision). We will affirm the trial court's order.

         BACKGROUND

         On September 18, 2017, the SJRA received a PIA request from Keaton Fuchs seeking communications discussing "water pre-releases before Hurricane Harvey between August 20, 2017 and September 18, 2017" and "decision-making about water releases between" those same dates. On the same day the SJRA received a PIA request from Charles McFarland seeking documents related to the SJRA's flood-management plan for Lake Conroe in place at the time of the releases of water between August 28 and September 7, 2017 and any "reservoir release forecast models" for the lake for the past five years. The SJRA determined that certain information responsive to each request was statutorily excepted from disclosure and sought decisions from the Attorney General on the respective requests. See id. § 552.301 (outlining procedures for governmental body to request decision from Attorney General about whether requested information falls within statutory exception). Per the affidavit of an SJRA representative, the SJRA "deposited in the mail" each of its two requests for Attorney General decisions on October 2, 2017. See id. § 552.301(b) (governmental body must request Attorney General decision no later than tenth business day after date of receiving request).

         On November 8, 2017, the Attorney General issued a decision on the McFarland request determining that the requested information was not subject to disclosure under sections 552.101 and 552.103 of the PIA See Tex. Att'y Gen. OR2017-25558 (2017); see also Tex. Gov't Code §§ 552.101 (excepting from disclosure information "considered to be confidential by law"), .103 (excepting from disclosure information "relating to litigation" in which state or political subdivision is or may be a party). On December 17, 2017 the Attorney General issued a decision on the Fuchs request determining that the SJRA had failed to timely submit its request for a decision and that, therefore, the information must be disclosed. See Tex. Att'y Gen. OR2017-28225 (2017); see also Tex. Gov't Code § 552.302 (providing that if governmental body fails to make timely request for Attorney General decision, "the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information"). In the Fuchs decision, the Attorney General concluded, "[a]lthough you assert the submitted information is excepted under section 552.103 of the Government Code, we find you have failed to establish a compelling reason to address your claim under this exception." See Tex. Att'y Gen. OR2017-28225 (2017).

         Believing that the Attorney General erred in its timeliness determination on the Fuchs request, the SJRA's general counsel, Mitchell Page, contacted the Attorney General's office and spoke with Jesse Harvey from the Open Records Division. In his affidavit attached to the SJRA's response to the Attorney General's plea to the jurisdiction, Page averred the following:

I contacted Mr. Harvey by telephone and explained to him that Section 552.308 of the Texas Government Code allows timeliness to be established by either the postmark OR other proof establishing the request was timely mailed, and that another request for decision mailed at the same time [the McFarland request] was deemed timely.
Given these circumstances, Mr. Harvey invited the SJRA, on behalf of the Attorney General's Office, to submit a request for reconsideration of the timeliness of its request for decision to Mr. Fuch's Public Information Act request. I did so on December 28, 2017.
I also understood this to mean the SJRA's 30-day deadline to file suit following a decision by the Attorney General had not yet begun to run because the Attorney General invited the SJRA to request reconsideration of its decision.
Had Mr. Harvey advised me either that the attorney general would not consider the SJRA's request for reconsideration OR that, notwithstanding his request to submit a request for reconsideration, his office would take the position that its request that the SJRA request reconsideration would not affect the deadline for the SJRA to oppose the Attorney General's obviously incorrect ruling, the SJRA would have filed this lawsuit immediately after the Attorney General's initial rejection of the SJRA's request.

         On February 6, 2018, the Attorney General sent correspondence to the SJRA stating, "Section 552.301(f) of the Government Code provides that a governmental body is prohibited from asking for a reconsideration of the attorney general's decision. [Citation omitted.] Therefore, unless you file a timely challenge in district court, you must comply with Open Records Letter No. 2017-28225." See Tex. Gov't Code § 552.301(f).[1] On February 23, 2018, the SJRA filed this lawsuit, seeking a declaration ...


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