Wait, my company’s confidential information can be released under the Public Information Act? How can we stop that?
Typically, a request under the Texas Public Information Act (TPIA) involves two parties: the governmental body that holds the information and the person requesting it. The government, however, holds a great deal of information from people and companies doing business in Texas, and some public information requests may also implicate the property or privacy interests of another person.[1] When a request implicates this type of information, the TPIA permits the third party to raise any applicable exception to the information’s disclosure with the Texas attorney general, or in district court, or both.
In cases where a third party’s property or privacy interest may be implicated by a request, the governmental body may decline to release the information in order to request an attorney general ruling.[2] The governmental body may, but is not required to, submit its reasons why the information should be released or withheld. If an attorney general ruling is requested, the third party is notified and offered the opportunity to explain its reasons for wanting the information withheld. The third party isn’t required to substantiate its claims of confidentiality at the time it submits material to a governmental body but, if an attorney general ruling is later requested by the governmental body, must demonstrate to the attorney general that the information falls within an exception to disclosure.[3]
If the attorney general concludes that the third party’s information should be released to the requestor, section 552.325 of the TPIA permits the third party to file suit against the attorney general to prevent the requested information from being released.[4] The governmental body may be joined as a defendant in the suit.[5] Whether the information is subject to disclosure is decided by the court anew. While some deference is afforded to the attorney general’s ruling, the court is not bound by it.
The third party must act quickly to contest the attorney general ruling. While there is no deadline for the third party to file suit under section 552.325, if the governmental body releases the information to the requestor before the suit is filed, all is lost.
The TPIA requires the third party to make a good faith effort to timely inform the requestor of the suit, and the requestor has a right to intervene in the suit.
In some cases, the attorney general may enter into a proposed settlement agreement with the third party that all or part of the information that is the subject of the suit be withheld from the requestor. Section 552.325 of the TPIA includes a procedure for notice to the requestor of the proposed settlement agreement and, if the requestor has not intervened in the suit, of the requestor’s right to intervene to contest the withholding. The court permits the requestor a reasonable period to intervene after the attorney general attempts to give such notice.
Sometimes during the pendency of a suit challenging an attorney general ruling, the requestor will voluntarily withdraw his or her request or the requestor may no longer be found. Section 552.327 of the TPIA authorizes a court to dismiss a suit challenging an attorney general ruling if all parties to the suit agree to the dismissal and the attorney general determines and represents to the court that the requestor has voluntarily withdrawn the request for information in writing or has abandoned the request.[6]
[1] Boeing Co. v. Paxton, 466 S.W.3d 831, 833 (Tex. 2015).
[2] Tex. Gov’t Code § 522.305(a).
[3] Tex. Att’y Gen ORD 575 (1990).
[4] Tex. Gov’t Code § 522.325.
[5] E.g. Boeing Co. v. Paxton, 466 S.W.3d 831 (Tex. 2015) (third party Boeing sought declaratory and injunctive relief from an Attorney general ruling by filing suit against the Attorney general and the Port Authority of San Antonio, the governmental body holding the requested information).