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Engineer’s report on city water treatment plant not public

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  1. Freedom of Information

    NMU         TEXAS         Freedom of Information         Feb 21, 2001    

Engineer’s report on city water treatment plant not public

  • Texas’ highest court rules that the report is exempt because it is protected by the court-derived rules of civil procedure and evidence.

In an 6-3 opinion released on Feb. 15, the Texas Supreme Court ruled that an engineering consultant’s report prepared for a city in anticipation of litigation was not a public record under the open records law.

Before deciding the question of releasing the engineering report, the court had to first determine which statute controlled the status of the record.

One section of the state open records law closes “information relating to litigations of a civil or criminal nature to which the state or a political subdivision is or may be a party” from public view.

However, in another section the legislature listed several documents, including a “complete report,” that must be made public even if not public under the open records law, unless expressly confidential.

The court determined that litigation documents like the one in question are confidential under the Texas Rules of Civil Procedure and the Texas Rules of Evidence and, therefore, were exempt from mandatory disclosure.

A lengthy dissenting opinion signed by three justices accused the majority of attempting to rewrite the open records law. The legislature only intended reports like the one in question to be exempt if confidential by another statute, the dissenters wrote, not by judicially created rules.

The report was prepared by a city-hired engineer to assess portions of a waste water treatment plant in connection with an ongoing lawsuit. The Austin American-Statesman requested access to the report. Under state law, a city is required to seek a ruling from the attorney general on public status of the record because it can deny access.

The attorney general issued an opinion that the record was public as a “completed report.” A trial court agreed and ordered the city to produce the report for the newspaper. Without issuing an opinion, an appellate court decided against overturning the lower court.

(In Re the City of Georgetown; Media counsel: Jennifer Riggs, Hill, Gilstrap, Riggs, Adams & Graham, Austin, Texas) CC

© 2001 The Reporters Committee for Freedom of the Press

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