The Third Court of Appeals in Austin has ruled against transparency in government and a Texas Attorney General Open Records opinion by holding that the City of Dallas can keep government documents secret even though the City did not comply with the Texas Public Information Act (PIA). The three judge panel consisted of two Republicans and one Democrat.
The City of Dallas received an open records request for documents relating to a landfill it owned and operated but has fought disclosure claiming “harm to the city’s bargaining position in a multimillion-dollar long-term transaction.” The City claims the information is exempted because it is protected from disclosure as attorney-client communications.
The Attorney General ruled against the City because it failed to assert the privilege within 10 days of receiving the request for the information as required by the PIA. The AG letter opinion also concluded that the city had failed to demonstrate a compelling reason to withhold the information. The City of Dallas appealed that decision to a Travis County district court.
The decision of the Austin Court of Appeals affirms a ruling by a Travis County trial court judge finding against the disclosure of City documents. The trial court had found that the attorney-client privilege is an “inherently compelling reason to withhold disclosure.”
The Austin appellate opinion (attached below) was released December 23rd and was authored by Justices Melissa Goodwin (R) and Jeff Rose (R).
The majority rejected the arguments made by the Attorney General on behalf of the State and held that the City of Dallas could assert its attorney-client privilege.
The lone Democrat on the Court, Justice Woodie Jones, wrote a dissenting opinion agreeing with another opinion by the Amarillo Court of Appeals which “held that the mere fact that requested materials constitute attorney-client communication is not enough, by itself, to demonstrate a ‘compelling reason’ to withhold disclosure” under the Texas Government Code.
The Texas Public Information Act was adopted in 1973 after the Sharpstown stock fraud scandal of the early 1970’s involving state government officials and Houston banker and insurance company manager Frank Sharp.
The Preamble of the PIA states that the policy behind the Public Information Act is:
“(a) Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
(b) This chapter shall be liberally construed in favor of granting a request for information.”
The dissenting justice at the Austin Court of Appeals wrote this in his opinion:
“In the present case, the City presented no evidence whatsoever that a disclosure of the materials would harm third parties and only vague, speculative evidence that the City itself could be harmed. For all intents and purposes, the City relied exclusively on the fact that the materials arguably fell within the attorney-client privilege. I do not believe that is enough. Accordingly, I do not believe the City met its burden of conclusively showing a ‘compelling reason’ for nondisclosure.”
In the November elections this year, voters in the City of Dallas overwhelmingly (89%) passed Proposition No. 1 requiring transparency in City debt elections. As a result, taxpayers will now be able to see the total future financial obligation or bond debt (principal and interest) of any proposition on the ballot. According to the Texas Scorecard, Texas “school districts and other governments have refused to voluntarily disclose the total cost of new debt on the ballot.”
Lack of transparency among Dallas City Council members has been the subject of Dallas Morning News editorial comment this year.
Bob Price is a senior political news contributor for Breitbart Texas and a member of the original Breitbart Texas team. Follow him on Twitter @BobPriceBBTX.