In a dispute over whether trial courts can order the governor and attorney general to release information under the state’s Public Information Act, the Texas Supreme Court was told during oral arguments Wednesday morning that the act has bounds.
“The Public Information Act is a wonderful tool for people to learn about the government,” Beth Klusmann of the attorney general’s office told the court Wednesday. “But it’s not unlimited.”
The underlying lawsuit was brought by self-described government watchdog American Oversight in June 2022. The group sought a writ of mandamus that would compel the disclosure of certain communications it had requested from the Texas governor and attorney general surrounding two events: the Jan. 6, 2021, insurrection at the Capitol and the 2022 mass shooting at Robb Elementary in Uvalde.
American Oversight alleged that not all responsive information had been produced in response to its requests and that the records it was seeking are public information. In response, the governor and the attorney general argued they had fully complied with the PIA, had turned over responsive documents and that the legal action was barred by sovereign immunity.
But Catherine Robb of Haynes Boone, who represents American Oversight, argued that to adopt the argument presented by the elected officials in this case would be to “ignore the plain language of the Public Information Act.”
“They are asking the court to rewrite the Public Information Act to exclude the governor or attorney general from any judicial review for their actions,” she said.
According to court records, in 2021 and 2022 American Oversight submitted seven separate requests for information under the PIA to the governor and attorney general. They asked for:
- Official communications with any non
–governmental email address attributed to Gov. Abbott from April 2020 to the date the search is conducted; - Text messages sent or received by Gov. Abbott pertaining to official business from Jan. 1, 2021, to the date the search is conducted;
- Email communications between the governor’s office and specified external entities, including the National Rifle Association,
- Email communications sent by the attorney general or the solicitor general from Jan. 6 to Jan. 8, 2021;
- Official communications with any nongovernmental email address attributed to the attorney general from April 1, 2020, through the date the search is conducted;
- Text messages sent or received by the attorney general pertaining to official business from Nov. 3, 2020, through the date the search is conducted; and
- Email communications between the attorney general’s office and specified external entities, including the NRA, from May 24, 2022, through June 3, 2022.
As to the requests for communications involving the NRA, the governor and attorney general said they had no information responsive to the requests. For the remainder of the requests, the elected officials produced some documents but requested a decision from the office of the attorney general about whether other requested information could be withheld under an exception to disclosure.
In a letter issued by OAG, the office explained some of the requested information can be withheld from disclosure under the attorney-client privilege and that other communications could be withheld under the Homeland Security Act.
That prompted American Oversight to turn to a Travis County district court, seeking a writ of mandamus that would compel the release of the requested information. The elected officials argued the action should be dismissed based on sovereign immunity and on mootness, as they had complied with the PIA in handing over responsive documents not excepted from disclosure.
Travis County District Judge Daniella DeSeta Lyttle disagreed and denied the plea to the jurisdiction by the governor and the attorney general. That ruling was upheld by a three-justice panel of the Third Court of Appeals in Austin in January 2024.
The governor and attorney general filed their petition for review with the Texas Supreme Court in March 2024, arguing in part that trial courts do not have jurisdiction to issue writs of mandamus against them as executive officers. That power belongs solely to the Texas Supreme Court, they argued.
Justice Jeff Boyd asked Klusmann during arguments Wednesday if, under her view of the law, there would be “any remedy” to someone who submits a PIA request to the governor or attorney general and believes not all responsive documents were produced.
She said the law only allows the Texas Supreme Court to issue a writ of mandamus against the governor or attorney general, not a trial court.
Justice Boyd asked a follow-up question: “But if the issue is there are responsive documents that they’re not giving us, your answer is there is no remedy?”
“In that case, there may not be,” Klusmann said. “We do assume that government officials follow the law.”
Chief Justice Jimmy Blacklock asked Robb to respond to the argument advanced by the elected officials that, under the PIA, any party seeking relief in a situation similar to American Oversight’s has the right to approach a district or county attorney, who has authority to pursue further action against a constitutional officer of the state.
“That only allows petitioner to go to the district attorney,” she said. “It doesn’t provide any direct relief for the petitioner. The people are allowed to demand accountability and to know how their government is operating. This is ingrained in the Public Information Act. This is the public policy of the state.”
Justice James P. Sullivan, the court’s newest justice who left the governor’s office after his appointment to the bench, did not participate in arguments.
The governor and attorney general are also represented by Brendan Fugere of the office of the attorney general.
American Oversight is also represented by Reid Pillifant of Haynes Boone and by Emma Lewis of American Oversight.
The case number is 24-0162.