The Texas Supreme Court has denied the appeal of a lower court decision permitting a delayed response to a public records request — potentially negating a law that requires a response to requests within 10 business days.
In refusing to consider the case of Hartman Newspapers against Fort Bend County, the high court opens the door to a new form of government denial of public records by allowing agencies to deny a records request until a requestor files a lawsuit.
“This is a real bitter blow,” said Joe Larsen, a public records lawyer who filed a brief on behalf of Hartman Newspapers. “The three branches of Texas government have taken away our public information. It’s time for a really aggressive response.”
The first step will be a motion for a rehearing, which Larsen said is unlikely to be granted.
Hartman Newspapers, owner of a chain of small papers based outside Houston, in 2015 requested the names of complainants in a bribery case involving Lamar Consolidated ISD.
The Fort Bend County Sheriff’s office initially refused to release the information to the Fort Bend Herald, a Hartman paper, referring the matter to the state Attorney General’s office.
Hartman filed a lawsuit three weeks after the request, seeking a court order to obtain the information.
The sheriff’s office did not ask the newspaper for a clarification of the information sought, but after the lawsuit was filed, released the information and claimed that Hartman’s legal complaint “clarified and narrowed” the request.
The First Court of Appeals in Houston denied Hartman’s claim that the county’s delay violated the state’s public information law along with Hartman’s request for attorney fees.
The law states that a public body must produce the records within 10 business days unless the party has sought an Attorney General’s opinion within that 10-day period.
In this case, Hartman received the records after filing a lawsuit, and claimed the delay violated the law. The court found that the records were produced and that Hartman therefore did not “substantially prevail” in its lawsuit — a key to recovering legal fees.
While there are numerous agencies and municipalities that cooperate with the tenets of transparency and its legal rule, “a decision like this makes it easier for government bodies to be bad,” Larsen said.
Last year, state lawmakers attempted to undo some of the state Supreme Court’s previous rulings against transparency, including a decision that made government contracts with private vendors a secret.
Gov. Greg Abbott vetoed a measure aimed at ensuring government agencies would have to pay the legal fees for a requestor even if they provided the records at some point before a court order.
The bill, Abbott wrote, “creates an incentive for requestors of public information to sue the government as quickly as possible instead of waiting for the statutorily defined public information process to play out.”
Steve Miller can be reached at [email protected].