San Jacinto River Auth. v. Yollick

623 S.W.3d 454

SAN JACINTO RIVER AUTHORITY, Appellant

v.Eric YOLLICK, Individually and as Publisher of the Golden Hammer Newspaper, Appellee

NO. 09-19-00064-CV

Court of Appeals of Texas, Beaumont.

Submitted on August 17, 2020

Opinion Delivered March 18, 2021

William S. Helfand, Shane L. Kotlarsky, Lewis, Brisbois, Bisgaard, and Smith, LLP, Houston, for Appellant.

Eric Yollick, Yollick Law Firm, PC, The Woodlands, pro se.

Before Golemon, C.J., Horton and Johnson, JJ.

HOLLIS HORTON, Justice

The Texas Public Information Act (the Act)¹ requires public entities like the San Jacinto River Authority (SJRA) to make certain information publicly available after receiving a written request seeking access to it unless they ask the Attorney General to approve withholding the information or show the Attorney General has already reviewed the information that was requested and determined the information is subject to an exception to disclosure under the Act.² But the Act also penalizes public entities should they fail to handle requests for information regulated by the Act in the manner the Act requires. The Act does that by prohibiting the entity from relying on most of the exceptions to the disclosure obligation in the Act should the entity be sued by someone who sought access and who then seeks to enforce the requirements of the Act when the entity refused to permit access to the information after the entity did not comply with its duties under the Act.³ And if the Act requires disclosure, the public entity must disclose the "complete information" covered in the request.⁴

This appeal concerns the trial of a case filed by Eric Yollick against the SJRA in which he claimed the SJRA failed to handle his request in accord with its duties under the Act. The trial court found the SJRA did not handle his request properly and then signed a judgment that requires the SJRA to disclose most of the information in a document the parties call the SJRA's Emergency Action Plan (the Plan). The trial court also found a compelling reason exists that allows the SJRA to continue to withhold some of the information in the Plan and to continue to withhold that specific information from Yollick. To prevent Yollick from accessing that information, the trial court ordered the SJRA to redact certain information from its Plan before allowing Yollick to see a copy, listing that information by page and paragraph where the information to be redacted exists in the Plan. In its appeal, the SJRA does not argue the Plan is not information regulated by the Act.⁵ Instead, the SJRA claims the evidence in the trial conclusively established it had complied with its duties to Yollick under the Act after receiving his request. It argues it complied with its duties for two reasons. First, the SJRA asserts the evidence shows it received a request seeking the Plan a week before it received Yollick's request from Bradford Laney, who asked the SJRA for access to the Plan. The SJRA referred Laney's request to the Attorney General's Office and asked that office to decide whether exceptions in the Act authorized the SJRA to withhold the Plan when responding to Laney's request. Second, the SJRA asserts the evidence in the trial shows the Attorney General, when responding to requests for information other than Yollick's, found the Plan to contain information that is excepted from disclosure requirements of the Act. As further support for its argument claiming the judgment should be reversed, the SJRA claims the trial court misinterpreted the Act when it applied the Act to the evidence admitted at trial.

We conclude the SJRA's arguments lack merit. For the reasons explained below, we affirm.

Background

In August 2017, following Hurricane Harvey, information about how the SJRA operates the Lake Conroe Dam became a topic of interest in Southeast Texas when the hurricane stalled in the area and caused widespread flooding.⁶ In September 2017, Eric Yollick, a resident of Montgomery County and the publisher of an internet blog, THE GOLDEN HAMMER , sent the SJRA an email asking that it provide him with certain information about its operations at the Lake Conroe Dam, information that included the SJRA's flood control plans over the ten-year period ending September 2017. The SJRA retained an attorney, Mitchell Page, to respond to Yollick's email. Page responded to Yollick's request in a letter on October 11, 2017. In the letter, Page advised Yollick that the SJRA would not allow Yollick to access the information covered in his request. He explained the only information the SJRA has that addresses the information covered in Yollick's email consisted of information in its Plan. Page advised Yollick the SJRA would not comply with his request because it had referred another request for the Plan, which it had received a week earlier, to the Attorney General's Office and asked the Attorney General to authorize the SJRA to withhold the Plan from Laney in response to his request.

When Page informed Yollick that the SJRA was withholding the information he asked for in his email, he also sent Yollick a copy of the letter that he sent to the Attorney General's Office on October 4, the letter that references Laney's request. In Page's October 4 letter to the Attorney General's Office, Page asked the Attorney General to authorize the SJRA to withhold the Plan from Laney based on the exceptions he identified that he asserted authorized the SJRA to withhold the Plan from the public under the Act. According to Page's letter to the Attorney General, the Plan may be withheld because it contains information that qualifies as confidential information under the Act and because it is related to litigation the Authority faces over the manner it operated the Lake Conroe Dam following Hurricane Harvey.⁷

In October 2017, Yollick sued the SJRA in Montgomery County after the SJRA notified him that it was refusing to comply with his request. In his Original Petition, Yollick claimed the SJRA failed to refer his request to the Attorney General and that when it did so, it did not have a previous determination from the Attorney General authorizing it to withhold the information in his request.

In February 2019, the parties tried the disputed issues to the bench. Following the trial, the trial court signed a final judgment, which requires the SJRA to allow Yollick to access most but not all the information in the Plan. The trial court allowed the Authority to keep withholding certain information from Yollick that is in the Plan after finding a compelling reason to do so existed based on the information the trial court reviewed after conducting an in-camera inspection of the SJRA's Plan.

The Trial

Only two witnesses were called to testify in the trial. Yollick called both witnesses when he presented his case-in-chief. Yollick was his first witness. He testified that he sent the SJRA an email in September 2017 and asked that it provide him with access to the following based on its duties to him under the Act:

1. The ‘carefully prepared engineering plan’ to which [the SJRA's] September 8, 2017, Press Release ("SJRA Responds to Lawsuit Regarding Hurricane Harvey Flooding") referred[.]

2. All engineering plans since October 1, 1994, [the SJRA] has prepared or had prepared for it for the operation of the Lake Conroe dam with respect to mitigation or reduction of downstream peak flows as water has passed through Lake Conroe from the San Jacinto River.

3. All flood control plans [the SJRA] has developed since August 28, 2007.

Yollick also testified that Page responded to his email in a letter dated October 11, 2017. Yollick introduced the letter into evidence. Page's letter to Yollick states: "The SJRA has already requested a decision from the Attorney General as to whether all or part" of the Plan is subject to exceptions to a public entity's disclosure obligations under the Act.

During his testimony, Yollick also sought to distinguish between the information he wanted to see and the information he thought might be relevant in the lawsuits filed against the SJRA in Harris County. The pleadings in those suits, which Yollick offered into evidence, reflect that various plaintiffs have sued the SJRA for damages to their respective properties that they allege arose from the manner the SJRA conducted its operations at the Lake Conroe Dam following Hurricane Harvey. Yollick suggested the information he seeks from the SJRA is different from the information relevant to the lawsuits the Authority is facing seeking to recover damages to real and personal property because the information he seeks does not include claims for damages to properties lying in Harris County. Yollick testified that unlike the evidence relevant in the Harris County cases, the information he seeks relates only to the downstream effects of water that is released from the Lake Conroe Dam.

Yollick also acknowledged that, before the trial, Page provided him with a copy of a letter the SJRA sent to the Attorney General's Office in April 2017. Yollick offered the April 19, 2017, letter into evidence. It shows the SJRA, through Page, asked the Attorney General's Office to authorize the SJRA to withhold information that Page's letter referring the matter to the Attorney General described as "certain information" without providing any other significant way to identify the information the Attorney General's Office reviewed. The only other information in the letter informative about what document or documents Page asked the Attorney General's Office to review as it relates to the April 19 letter from the Attorney General is that the person who had asked the SJRA for information had requested access to "the complete dam release protocol" for the Lake Conroe Dam.⁸ Thus, whether the Plan is among those documents the Attorney General's Office reviewed in April 2017 and among the document or documents the Attorney General authorized the SJRA to withhold is unclear from the information the...