Two separate but similar lawsuits against city governments over the release of public records came to a conclusion recently. Both cases delivered a form of defeat for the plaintiffs while establishing notable case law on how the TPIA is enforced.
A synopsis of the process is that once a written request for public records is submitted, the government has 10 business days to produce it, or else request the Texas Office of the Attorney General (OAG) to review the record if they believe it contains non-public records and redact or withhold the excepted information from the release.
The government must release whatever records the OAG rules are public information, and if they don’t, either the requester or the OAG may file a lawsuit seeking a court order to release the record.
The two recent cases have set similar but distinct precedents on how these lawsuits for public records operate.
Putnam v. City of Georgetown
Resident Terrill Putnam heard claims from the City of Georgetown’s mayor that a renewable energy program was a significant financial benefit, and after speaking with a councilman he was encouraged to request records that would show whether the mayor’s statements were true.
Putnam requested the records and was denied access, with the city claiming their disclosure was excepted under a clause that allows information to be withheld if it would give a competitor utility company a competitive advantage.
Doubting that it would, Putnam filed another request and was denied again. Teaming up with attorneys with the Texas Public Policy Foundation, he sued.
Once the city faced a court challenge for the records, they immediately released the documents to Putnam, saying the “voluntary” disclosure “does not waive, bind, or prevent the City from in any way asserting any and all applicable exemptions and exceptions to public disclosure for similar documents, information, and data” that he or anyone else may request in the future.
Since there was still a disagreement over whether the records were public, Putnam pressed forward with his suit. He prevailed, gaining a court order recognizing the records were subject to release, then moved to hold the city liable for his attorney fees and court costs.
The city appealed and gained a victory at the Eighth Circuit Court of Appeals, which held that the case became moot when the city voluntarily produced the records and determined Putnan would not be entitled to recover his attorney fees and court costs from the city after years of litigation.
Appealing that decision to the Texas Supreme Court proved unsuccessful when the high court recently declined to grant Putnam’s request for review, leaving the Eighth Circuit’s precedent in place.
Aim Media v. City of Odessa
The parent company of the Odessa American newspaper, Aim Media, filed a public records-based lawsuit against the City of Odessa, seeking a court order forcing the city to release certain types of public information immediately. It argued that police reports relating to the 2019 Odessa mass shooting took many months to obtain and that the newspaper should be able to immediately obtain police reports as they have in the past.
The City of Odessa countered that the law requires them to separate public information from confidential information, such as the identity of juvenile crime victims, and redact or withhold that sensitive information prior to releasing the public information.
Further, the city argued the TPIA only allows for a lawsuit against the government when they refuse to request an opinion or refuse to abide by an opinion from the OAG.
In this case, one of the points argued is the city had initially withheld information on a police report until the OAG ruled it must be released, which they did.
A State District Judge granted the city’s motion to dismiss the case, which the plaintiff appealed to the 11th Circuit Court of Appeals, seeking to have the dismissal overruled and remanded to the trial court to proceed.
In its 2 to1 ruling in favor of the city, the majority wrote that the Odessa American “appeared” to be seeking a prospective court order to force the city to supply basic public information regarding police records and order them to “immediately” turn over future requests.
But, the court ruled, with regard to the plaintiff’s “seeking relief with respect to such past requests, its claims are now moot,” further adding that the mootness doctrine exists to prevent courts from issuing advisory opinions and limit them to active controversies. “[A] court cannot decide a case that has become moot during the pendency of the litigation,” the majority opinion reads.
Ultimately, the court ruled the TPIA did not waive the city’s sovereign immunity for a records lawsuit seeking prospective relief or prompt release of information for future requests.
Attorney Fees Under a TPIA Lawsuit
One question both cases brought up is what happens if the court determines the case is moot after it has been filed due to the request for public records being fulfilled by the government.
Litigation is expensive, and if the government acquiesces during the trial and produces the records, plaintiffs will be stuck with the court costs.
Notably, while this is exactly what happened in Putnam’s case, the Odessa case is slightly but significantly different in that the plaintiff sought a court order for relief on preventing delay in releasing requested information in the future.
“Under the TPIA, a court is required to assess reasonable attorney fees incurred by a plaintiff who substantially prevails,” the Eleventh Circuit ruled, adding, “However, when a governmental body voluntarily releases information to a plaintiff in a TPIA matter prior to entry of a final judgment or other order, the plaintiff has not substantially prevailed.”
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Matt Stringer is a reporter for The Texan who writes about all things government, politics, and public policy. He graduated from Odessa College with an Associate Degree in Paralegal Studies and a Bachelor’s Degree in Management and Leadership. In his free time, you will find him in the great outdoors, usually in the Davis Mountains and Big Bend region of Southwest Texas.