Paxton v. Am. Oversight

683 S.W.3d 873

Ken PAXTON in his Official Capacity as Texas Attorney General and Greg Abbott in his Official Capacity as Texas Governor, Appellants

v.AMERICAN OVERSIGHT, Appellee

NO. 03-23-00090-CV

Court of Appeals of Texas, Austin.

Filed: January 17, 2024

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY, NO. D-1-GN-22-002976, THE HONORABLE DANIELLA DESETA LYTTLE, JUDGE PRESIDING

Catherine Lewis Robb, Austin, Emma Lewis, Mehreen Rasheed, William Pillifant, for Appellee.

Alyssa Bixby-Lawson, Kathryn M. Cherry, for Appellants Greg Abbott in his Official Capacity as Texas Governor.

Kathryn M. Cherry, Kimberly Gdula, for Appellants Ken Paxton in his Official Capacity as Texas Attorney General.

Before Chief Justice Byrne, Justices Kelly and Theofanis

OPINION

Rosa Lopez Theofanis, Justice

In this interlocutory appeal, Ken Paxton, in his official capacity as the Texas Attorney General, and Greg Abbott, in his official capacity as the Texas Governor, appeal from the trial court’s order denying their pleas to the jurisdiction in a case brought under the Texas Public Information Act (PIA). See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); Tex. Gov’t Code §§ 552.001–.353. For the following reasons, we affirm the trial court’s order.

BACKGROUND

In 2022, American Oversight submitted three public-information requests to the Office of the Governor, requesting disclosure of (i) official communications with any non-governmental email address attributed to Governor Abbott from April 2020 to the date the search is conducted ("Abbott Non-Governmental Accounts Request"); (ii) text messages sent or received by Governor Abbott pertaining to official business from January 1, 2021, to the date the search is conducted ("Abbott Texts Request"); and (iii) email communications between the Office of the Governor and specified external entities, including the National Rifle Association, from May 24, 2022, through June 3, 2022 ("Abbott Gun Groups Request").

In 2021 and 2022, American Oversight submitted four public-information requests to the Office of the Attorney General (OAG), requesting disclosure of (i) email communications sent by Attorney General Paxton or the Solicitor General from January 6 to 8, 2021 ("January 6th Communications Request"); (ii) official communications with any non-governmental email address attributed to Attorney General Paxton from April 1, 2020, through the date the search is conducted ("Paxton Non-Governmental Accounts Request"); (iii) text messages sent or received by Attorney General Paxton pertaining to official business from November 3, 2020, through the date the search is conducted ("Paxton Texts Request"); and (iv) email communications between the OAG and specified external entities, including the National Rifle Association, from May 24, 2022, through June 3, 2022 ("Paxton Gun Groups Request").

The Office of the Governor and the OAG (collectively "Respondents") responded that they had reviewed their files and had no information responsive to the respective Gun Groups Requests. As to the other public-information requests, Respondents wished to withhold information from public disclosure and requested a decision from the OAG about whether the information was within one of the PIA’s exceptions to. disclosure. See Tex. Gov’t Code § 552.301 (setting forth procedure for governmental body to request decision from attorney general when "it wishes to withhold from public disclosure"). The OAG’s Open Records Division (ORD) issued letter rulings as follows:

• Abbott Non-Governmental Accounts Request: the ORD concluded that the Office of the Governor could withhold information as privileged attorney-client communications, as well as related to pending litigation. See id. §§ 552.103 (excepting from disclosure information relating to pending litigation), 107 (excepting from disclosure information subject to attorney-client privilege).

• Abbott Texts Request: the ORD concluded that some information must be withheld based on the Homeland Security Act, see id. §§ 418.176–.177 (stating that certain information is confidential relating to act of terrorism or related criminal activity), and that the Office of the Governor could withhold the information marked as related to pending litigation, attorney-client communications, privileged deliberative material, and related to ongoing competitive situations, see id. §§ 552.103, .104 (excepting from disclosure information relating to competition or bidding), .107, .111 (excepting from disclosure interagency or intra-agency memoranda that would not be available to party in litigation with agency). After the underlying suit was filed, the Office of the Governor produced redacted text messages in response to this request.

• January 6th Communications Request: the ORD concluded that the OAG could withhold responsive information as privileged attorney-client communications. See id. § 552.107. Prior to requesting a letter ruling, the OAG produced two responsive records.

• Paxton Non-Governmental Accounts Request: the ORD concluded that the OAG could withhold information as privileged attorney-client communications. Id.

• Paxton Texts Request: the ORD concluded that the OAG could withhold information as privileged attorney-client communications. Id. At the time the OAG requested a letter ruling, the OAG produced two responsive records.

In June 2022, American Oversight sued Respondents, seeking a writ of mandamus to compel the disclosure of the requested public information. See id. § 552.321 (authorizing suits for writ of mandamus to compel governmental body to make information available for public disclosure when governmental body refuses to supply public information). It contended that the requested records were public information and challenged Respondents’ positions that they had produced all responsive information to the seven public-information requests. For example, as to the Abbott Gun Groups Request, American Oversight alleged in its amended petition:

62. The Abbott Gun Groups request seeks all electronic communications between Governor Abbott and senior officials, on the one hand, and select individuals and organizations that focus on firearms, on the other hand, for a period of time surrounding the mass shooting in Uvalde, Texas. During this time period, Governor Abbott cancelled an in-person appearance at the National Rifle Association’s convention but gave a prerecorded address. See Andrew Zhang, Greg Abbott, Dan Patrick Cancel In-Person NRA Convention Appearances In Wake of Uvalde Mass Shooting, Tex. Trib., May 26, 2022, https://www.texastribune.org/2022/05/26/greg-abbott-nrauvalde, It is not credible that no senior official in the Governor’s Office was communicating with external entities focused on gun advocacy during a period of time that included both a major mass shooting event and the National Rifle Association annual meeting in the state.

Similarly, American Oversight’s allegations as to the Paxton Gun Groups Request included, "It is not credible that no senior official in the [OAG] was communicating with external entities focused on gun advocacy during a period of time that involved both a major mass shooting and the National Rifle Association annual meeting in the state." And as to the January 6th Communications Request, American Oversight alleged:

63. The January 6th Communications Request seeks all email communications sent by Attorney General Ken Paxton or Solicitor General Judd Stone during a three-day period of time during which the Attorney General appeared at a political rally in Washington, D.C. See Benjamin Wermund, Ken Paxton at Trump’s D.C. Rally: We will not quit fighting.’, Houston Chron., Jan. 6, 2021, https://www.houstonchronicle.com/politics/texas/article/Paxton-Trump-DC-rally-election-2020-georgia-15850073. php. It is highly implausible that a mere two email chains from the Solicitor General were the only communications not made to "facilitate the rendition of professional legal services" on those days.

American Oversight included similar allegations as to each request to support its position that Respondents had not. complied with the PIA.

Respondents filed answers and pleas to the jurisdiction based on sovereign immunity and the mootness doctrine. Respondents contended that they had fully complied with the PIA by conducting a search for responsive documents in a diligent manner and in accordance with applicable policies and procedures and releasing the information that the ORD had determined was required to be released. They supported their pleas to the jurisdiction with affidavits from their respective public-information officers and copies of American Oversight’s requests for public information, their responses, and the ORD’s letter rulings. The affidavits detailed steps taken to conduct a "diligent and good faith search" for responsive information.

American Oversight filed a response to the pleas to the jurisdiction with exhibits, Including copies of information that had been provided in response to its requests. American Oversight also filed its amended petition that included additional allegations challenging the correctness of the ORD’s letter rulings. American Oversight alleged that the ORD "improperly limited the scope of public information" in the letter rulings and that Respondents’ "reliance on those rulings constitutes an improper withholding of responsive records."

Following a hearing, the trial court denied Respondents’ pleas to the jurisdiction. This interlocutory appeal followed. See Tex. Civ. Frac. & Rem. Code § 51.014(a)(8).

ANALYSIS

In four issues, Respondents argue that the trial court does not have jurisdiction to issue a writ of mandamus against them, that American Oversight did not meet its burden to affirmatively demonstrate jurisdiction over Respondents, that the trial court erred by refusing to decide jurisdiction without in camera review of documents withheld by Respondents, and that some of American Oversight’s claims are...