From the Spring 2000 issue of The News Media & The Law, page 29.
The state Supreme Court ruled that an internal memorandum outlining the reasons why a city should fire its finance director was a public record under the Public Information Act, but it split on the reason why. In apparent contradiction to the plain language of the law, the majority also ruled a city was allowed to file a lawsuit to determine whether a document was a public record, even if the city did not request an attorney general’s opinion on the record’s status prior to filing suit.
A majority of the court also ruled that the city could not use the “deliberative process” exemption to keep the memorandum secret. The court also found that the appeals court was justified in ordering a jury to decide how much in attorney’s fees the city should have to pay the record requestor.
In the summer of 1993, the city manager for Garland, Texas, Ron Holifield, drafted a memorandum that listed reasons why the city would be justified in firing its finance director, James Hager. Although the memorandum was addressed to Hager, Holifield instead presented it to the city council, which discussed it during a closed session in August 1993. After the meeting, the city manager decided not to send the memorandum to the finance director, who eventually agreed to resign.
Under the Public Information Act, The Dallas Morning News requested that the city provide copies of documents concerning Hager’s departure in September 1993. The city replied that it did not have any public documents that would be responsive to the newspaper’s request. The city then filed suit against the newspaper in state court in Dallas, seeking a ruling that the documents it possessed concerning the Hager’s departure were not public records. The newspaper filed its own suit to compel the city to release the requested documents. The city released three documents but continued to withhold the memorandum.
In papers filed with the court, the city argued the memorandum was not a public record because it was a draft document and was not used to transact official business. Even if the court decided the memorandum was a public record, the city argued that an exemption for deliberative records allowed it to keep the document secret. The city claimed that the memorandum revealed its deliberative process and releasing it would have a chilling effect on future city council discussions.
The newspaper countered that the district court did not even have the power to hear the case because the city had not followed the open records law, which, it argued, required governments unsure of a record’s status to request a determination by the attorney general before withholding a record. Because it had not requested an attorney general’s opinion on whether the deliberative process exemption covered the memorandum, the city had waived its right to raise the exemption at trial, the newspaper also argued. In June 1995, the district court ordered the city to release the memorandum and, after a separate bench trial, ruled the city had to pay more than $45,000 in attorney’s fees to the newspaper.
In May 1998, the appeals court in Dallas affirmed the lower court’s decision ordering the city to release the memorandum, but it reversed the court’s award of attorney’s fees to the newspaper. It remanded the case for a jury to decide how much in attorney’s fees to award the newspaper.
The city and newspaper appealed to the Supreme Court in Austin. The city asserted that the memorandum was not public because the open records law only requires disclosure of records “used” to conduct public business. Furthermore, the memorandum was only a draft document that had never been approved by the City Council nor given to Hager.
The newspaper countered that draft documents may be public under the law. The central question, the newspaper argued, was whether the city had used the memorandum. Because the city council referred to the memorandum and discussed its contents during its closed meeting, the city had used the memorandum, it said.
In January 2000, a majority of the court sided with the newspaper, finding that the memorandum was a public record. But the majority split on whether drafts may be public, with the plurality deciding that they may be and a concurring judge saying only completed documents must be made public. The concurrence explained that this memorandum was nonetheless a public document because the city’s use of it proved that the document was completed and not a draft.
“To allow a governmental body to exempt otherwise public documents from the Act simply by labeling or calling them ‘drafts’ would invite governmental bodies to circumvent the Act’s purpose,” Justice James Baker wrote for the plurality. “[T]he mere creation of a draft is not transacting official business. But if the draft is used in connection with transacting official business, then the draft becomes public information.”
A majority of the court also found that no exemptions could be applied to keep the memorandum secret. The city had claimed that the memorandum was protected by the “deliberative process” exemption because it was written prior to the city council’s decision and was used as part of the council’s deliberations. But the court decided that the exemption applied only to those documents the city used in formulating a government policy. The decision to fire an employee was a personnel matter, the court said, not a policy question.
In what became only a minor victory for the city in this case, a majority of the court ruled that the procedures set forth in the open records law did not preclude the city from filing suit in district court to determine the status of a requested document. The legislature had the opportunity to close off the option and require appeals only to the attorney general’s office. The fact that it did not do so suggests that cities are allowed to seek declaratory judgments, the Supreme Court ruled.
The court also ruled that the appeals court did not act improperly when it remanded the case so that a jury could decide the appropriate amount of attorney’s fees owed to the newspaper. While the public records law requires a judge to decide whether attorney’s fees are warranted, a judge may decide either to set the amount or to leave the amount up to a jury, the court said.
Two justices dissented, saying that the memorandum was a public record but that it could be kept secret under the “deliberative process” exemption. The dissenters said this exemption should apply to all documents made prior to a governmental body’s decision or used as part of deliberations, regardless of whether a document related to formulation of an official government policy.