Memo urging council to fire finance director is public

TEXAS–A draft memorandum advocating the termination of the city of Garland’s director of finance is public information and is not protected by the agency memoranda exception in the state Public Records Act, a state appeals court in Dallas unanimously ruled in mid- May.

Justice Ed Kindeade ordered the city to disclose the document to The Dallas Morning News but sent the case back to the lower court for jury trial on the amount of the newspaper’s attorney’s fees.

The city had argued that because the strategy outlined in the memorandum was not pursued, the memo could not be considered “public information.” The court disagreed, holding that the document was prepared in connection with the transaction of official business because it was distributed to city council members and was discussed at a city council executive session.

The document is not protected by the agency memoranda exception in the state Public Records Act, the court held. That exception prohibits the release of documents that are used as part of a deliberative process and are related to an agency’s policy-making function. The court said that because the requested memo concerned an internal personnel matter — the employment of the city’s director of finance — it did not implicate policy-making functions.

The appeals court also found that the lower court erred when it refused to allow a jury to determine the amount of the newspaper’s attorney’s fees. The court noted that although the state Public Records Act does not permit a jury to determine the amount of attorney’s fees, the Texas Constitution provides that the “right to trial by jury shall remain inviolate.”

Garland’s city manager initially prepared the draft memo in August 1993, proposing that the council fire the city’s director of finance. After discussing the memo at a closed city council meeting, the city manager abandoned his position.

The Dallas Morning News’ request for the document was denied and the city filed suit in district court in Dallas seeking a declaration that the document was not subject to disclosure under the state Public Records Act. The trial court ordered the memo released and awarded the newspaper $45,184.64 in attorney’s fees. The city then appealed. (City of Garland v. The Dallas Morning News, Media Counsel: Paul Watler, Dallas)