Can a governmental body use litigation as an excuse to withhold public information?
As a concerned citizen, investigative reporter, or sleuthing competitor, you submit a TPIA request to a governmental body in search of public information. Lo and behold, however, the governmental body refuses to produce the information, claiming a “litigation exception” to the TPIA. But you didn’t sue the governmental body. What gives?
Section 552.103(a) of the Texas Public Information Act (TPIA), commonly known as the “litigation exception,” aims to prevent the use of public information requests as a method to avoid discovery rules. The litigation exception allows governmental entities to protect their position in litigation by forcing the other parties to obtain information from it through the discovery process.[1] The litigation exception can also be invoked to withhold information from third-party requestors who aren’t even involved in litigation against the governmental body.[2] Unless you’ve submitted your TPIA request early, before litigation is even threatened, the litigation exception can be a frustrating barrier to obtaining information that merely relates to pending or “reasonably anticipated” litigation involving a governmental body.
Nonetheless, there are several limitations on the government’s disclosure obligations in the discovery context that make TPIA requests an attractive supplemental discovery device. Discovery is normally available to the parties only after a proceeding has begun and then only for a limited period of time. And discovery may be used only to obtain information and documents that are relevant, or that may lead to information and documents that are relevant, to the pending action. By comparison, under the TPIA, governmental bodies must promptly produce public information to any person upon request, so long as the information is not confidential or otherwise excepted from disclosure.
It’s possible that the litigation exception does not apply to the information you have requested from the governmental body. For information to be excepted from public disclosures under the litigation exception, it has to relate to “pending or reasonably anticipated” litigation.[3] The applicability of the litigation exception is determined when the governmental body receives the public information request.
According to the Attorney General, litigation is “reasonably anticipated” when “concrete evidence” showing that litigation will ensue.[4] For example, an isolated telephone threat of litigation does not trigger the exception. On the other hand, the Texas Attorney General has applied the exception where an attorney made a written demand for disputed payments and stated that further legal action would be necessary unless payments were made and other facts indicated a real dispute between the parties. Ultimately, whether litigation is “reasonably anticipated” requires a case-by-case determination. To avoid the invocation of the litigation exception, submit your public information request early—before any threat of litigation is made.
The governmental body’s determination of whether the requested information falls within the litigation exception is not affected by the requestor’s need or desire to use the information in connection with litigation. In fact, the Texas Public Information Act prohibits a governmental body from inquiring into a requestor’s reasons or motives for requesting information.
The litigation exception can’t protect information from disclosure permanently. Once litigation is no longer “reasonably anticipated,” the requested information has been inspected by all parties to the litigation through discovery or otherwise, or the case has been dismissed, settled, or finally resolved, the litigation exception no longer applies.[5] Litigation is no longer “reasonably anticipated” when, for example, the applicable statute of limitations for the claim has expired or a settlement agreement is reached.[6]
In addition, a governmental body can’t use the litigation exception to withhold information when the pending or anticipated litigation is between private parties only.[7]
Cobb & Counsel has significant experience in litigating open government issues. If you are involved in a dispute regarding the release of government records under the Texas Public Information Act, contact us to discuss your options.
[1] Open Records Decision No. 551 at 4 (1990).
[2] Id. (“In striking this balance between public access to records and the litigation interests of governing bodies, the legislature may have imposed some inconvenience on persons who are not parties to the litigation.”).
[3] Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.—Austin 1997, no pet.).
[4] Open Records Decision No. 452 at 4 (1986).
[5] Thomas v. Cornyn, 71 S.W.3d 473, 487 (Tex. App.—Austin 2002, no pet.); Abbott v. GameTech Intern., Inc., 03-06-00257-CV, 2009 WL 1708815, at *2 (Tex. App.—Austin June 17, 2009, pet. denied).
[6] See Op. Tex. Att’y Gen. No. OR2000-0038 (2000); Op. Tex. Att’y Gen. No. OR2001-2203 (2001).