Last Tuesday, on December 10, 2013 city council went into executive session and discussed the city’s litigation against the Texas Attorney General. The city council took no action on the agenda item after exiting executive session. However, later that afternoon the City of El Paso issued a press release stating that it had complied with the Texas Attorney General’s ruling and that the city council had agreed to produce all of the records. The city also argued that there is no mechanism by which private individuals can “seek materials from public officials” under the Texas Government Code.
The press release went on to add that the “City Attorney’s Office has fully briefed the Council and will proceed in accordance with the direction given”. The press release did not explain what the “direction given” entailed.
On November 14, 2013, the city had filed a “Supplemental Plea to the Jurisdiction” against the Texas Attorney General and Stephanie Townsend Allala, as “intervenor”. In it the city argued that the city has complied with the Texas Attorney General’s ruling and therefore the court no longer had jurisdiction over the matter. The city has also asserted the sovereign immunity doctrine arguing that Stephanie Townsend Allala, as a private citizen, cannot “prosecute” the case. According to the city’s argument, only the Texas Attorney General can file suit against the city to compel the city to release documents under the Texas Public Records Act.
Last week the judge ruled that she was dismissing from the pending litigation KVIA, Diario de Juárez and two private individuals who had also intervened in the case. The judge refused to grant the city’s request to also dismiss Stephanie Townsend Allala from the lawsuit. Therefore the city filed an appeal with the Third Court of Appeals.
This appears to be the “direction given” by city council.
Also, on September 30, 2013 the court had ruled that Stephanie Townsend Allala could proceed with the depositions of Susie Byrd, Cortney Niland, Steve Ortega and Joyce Wilson. The city had filed a court motion asking for the depositions to be dismissed. The depositions were scheduled for December. Last week’s court ruling included quashing the scheduled depositions however the court rejected the protective order requested by the city allowing Stephanie Townsend Allala to schedule another deposition.
However the city’s appeal to the Texas Appeals Court automatically stays all other court activity meaning that until the appeals court rules on the appeal no other litigation can proceed, including the depositions.
The city’s appeal is the second time a city is contesting whether a government official must release personal emails pursuant to the Texas Public Information Act.
The Tommy Adkisson Case
On October 2013, the Third Court of Appeals heard arguments between Bexar County Commissioner for Precinct 4 Tommy Adkisson and the Texas Attorney General. According to the appeal court documents, Adkisson is arguing that the Texas Information Act defines public records as those assembled, collected or maintained by the government body and therefore his personal emails do not fall under the TPIA.
On August 6, 2012 Judge Scott Jenkins had ruled in favor of the Texas Attorney General and the San Antonio Express-News ordering Adkisson to release his emails. However Tommy Adkisson argued that the court’s ruling did not address whether “privately held information” was subject to the Texas open records laws.
The case stems from two open records requests filed on February 17 and February 18, 2010 by a reporter for the San Antonio Express-News “seeking copies of all e-mails from Adkisson to and from certain individuals”. A second request was filed on March 24, 2012 by the San Antonio-Bexar County Metropolitan Planning Organization.
On January 15, 2013 Tommy Adkisson filed an appeal with the Third Court of Appeals. The law firm Denton, Navarro, Rocha & Bernal filed the appeal on behalf of Adkisson. The City of El Paso has also been using this same law firm to litigate the release of emails in regards to the ballpark.
The basis for Tommy Adkisson’s legal argument is that the Texas Public Information Act, at the time of the open records request did not define public information as documents accessible to a public servant but “unassembled, uncollected, unmaintained and inaccessible information, including emails, held independently from the government body”. In essence, if the information was not on government property then it was not public information.
Both the Texas Attorney General and the San Antonio Express-News disagreed. As of today, the court of appeals has not issued a ruling on the Adkisson case. The City of El Paso, for its part, is arguing that Stephanie Townsend Allala does not having standing to sue the city under Texas sunshine laws. Because of the appeals the depositions of Steve Ortega and the others are now stayed until the appeals process has completed.
At this point it is unclear on how much the city is spending to appeal the latest judge’s ruling.