NO. Filed 10 June 24 P12:29 Amalia Rodriguez-Mendoza District Clerk Travis District D-1-GN-10-002120 TOMMY ADKISSON, INDIVIDUALLY AND OFFICIALLY ON BEHALF OF BEXAR COUNTY, TEXAS, AS COUNTY COMMISSIONERPCT.4 Plaintiffs v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, Defendant IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS JUDICIAL DISTRICT PLAINTIFFS' ORIGINAL PETITION FOR DECLARATORY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: Now comes, Tommy Adkisson, individually, in his official capacity as Bexar County Commissioner Precinct 4, and on behalf of Bexar County, Texas (hereinafter referred to as Plaintiffs) who bring this suit pursuant to Texas Civil Practices & Remedies Code Chapter 37 and Chapter 552 of the Texas Government Code, including 552.353(b), seeking declaratory judgment and injunction to prevent the application of the Texas Public Information Act (the Act) in connection with certain requests made to the Commissioner for non-public information (including 0R2010-07537 and 0R2010-08701) and any future substantially similar requests, as further described below: 1. Plaintiffs seek an initial declaration that: A) The personal papers and effects of local government officials and local government employees are not subject to "open records searches" and compelled disclosure to the Texas Attorney General when applying the Act because the affected
individuals do not fall within the term "governmental body" as that term is defined by the Act. B) The personal papers and effects of local government officials and local government employees do not meet the statutory definition of public information and therefore, are not subj ect to the Act. 2. In the alternative and in the event the Court somehow finds the scope of information at issue is "public information" as defined by the Act, and contingent upon the scope of the initial declaration, Plaintiffs seek a declaration that such information referred to herein is excepted from required disclosure under the Act. Factual Background for Declaratory & Injunctive Relief 3. Josh Baugh, on behalf of the San Antonio Express-News, made a Public Information Act demand for "all inbound and outbound e-mail correspondence" between the Commissioner and Terri Hall and "all inbound and outbound e-mail correspondence" between the Commissioner and Isidro Martinez within a specified time period. (See Exhibit A - The 02117/2010 Request). The 02/1712010 request sought all "official capacity" information held within the County and impermissibly sought all information not owned by the governmental body or accessible to the governmental body despite the definition of public information as defined by 552.002(a) of the Act. 4. Applying the definition of public information in good faith, the Commissioner produced all responsive information held by the governmental body or for the governmental body that the governmental body owned or held a right of access to and sought the assistance of the District Attorney to obtain an opinion of the Texas Attorney General finding the remaining information sought was not subject to the Act. The Bexar County District Plaintiff's Original Petition for Declaratory Judgment Page 2
Attorney, correctly applying the law and procedural aspects of the Act, requested an opinion of the Texas Attorney General that the remaining information sought but undisclosed was not subject to the Act. (See Exhibit B - 03110/2010 15 Day Brief). 5. The Texas Attorney General, ignoring the clear and unambiguous statutory definitions provided by the legislature and the well reasoned legal briefing by the Bexar County District Attorney's Office, impermissibly re-wrote and unconstitutionally applied Texas law by not only expanding the definition of a "governmental body" to include all local officials and all " local employees, but expanded the definition of "public information" beyond constitutional limits. Compare the Texas Attorney General's own recital of 552.002(a) from his opinion, with his self-pronounced revision of the very same statute in the very same opinion, as provided below: Legislative Definition of 552.002(a): Section 552.002(a) provides that "public information" consists of information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it. Attorney General's Definition of 552.002(a) Information is within the scope of the Act if it relates to the official business of a governmental body and is maintained by a public official or employee of the governmental body. (See Exhibit C - 05124/2010 0R2010-07537). This impermissible and wholesale revision of the legislature's definition must be corrected by order of the Court. Upon making his selfproclaimed amendment to Texas law, the Attorney General went on to admonish the Commissioner with the threat of possible criminal sanctions if he did not comply with the Attorney General's opinion of what the Attorney General believes the law should be. Id. Plaintiff's Original Petition for Declaratory Judgment Page 3
6. The Act, while clearly applicable to information owned or accessible by the defined "governmental body", has no provision either implicitly or explicitly which expands its application to information held or accessible to all local government officials and/or all local government employees, regardless of how acquired"...if it relates to the official business of a governmental body...". The Act is not applicable to information held by local government officials and local governmental employees that is not otherwise owned or accessible by the defined governmental body, as that term is defined by 552.003 of the Act. The definition is very detailed and specific. The Attorney General's definition of "public information' necessarily requires an extension of the Act's definition of "governmental body" to reach his conclusion that it is applicable to information held by every Texas local government official and employee. 7. The circumstances in the first request were essentially repeated with a second request made by Scott Ericksen, Public Involvement Coordinator, San Antonio-Bexar County MPO dated March 24, 2010. (See Exhibit D (which includes the request & clarification correspondence and the 15 Day Brief dated April 8, 2010)). The Attorney General's second opinion went even further than the first! (See Exhibit E - 0R2010-0871). After what began as essentially an identical opinion, with the same erroneous conclusions, the Texas Attorney General opined that the Commissioner/County's failure to produce the non-public information to the Attorney General's Office at the time the opinion was sought "... results in a legal presumption the requested information is public and must be released." Application of the Act in this manner must be corrected. 8. Such interpretation of the Act cannot be allowed because it results in authorizing the Texas Attorney General to conduct an open records search of every local government Plaintiffs Original Petition for Declaratory Judgment Page 4
official's and employee's personal papers and effects on the speculative whim of a member of the public that makes an information request that somehow "relates" to the official business of a "governmental body". The Attorney General once again admonishes the Commissioner with the threat of criminal prosecution for failure to comply with his opinion. The declaration sought fully encompasses any duty and obligation of the Commissioner and Bexar County in connection with this request, as well as any future requests substantially similar. 9. In essence, the Attorney General unilaterally decided that in applying his revisionist definitions to the request, which disagreed with the Plaintiffs' determination, he could decide that Plaintiffs failed to comply with the procedural requirements of 552.301. Therefore, the Attorney General then imposed a "death penalty" sanction to further compel disclosure, which must be corrected. When the issue presented is the very applicability of the Act based on the scope of information sought, the non-disclosure of non-public information cannot be used as the very basis to determine applicability and access. Plaintiffs seek a court order declaring the rights, duties and obligations of the parties in connection with this matter, finding that the decision to preserve confidentiality or other bases by not disclosing information while a determination of the applicability of the Act is in question, may not be used as a basis for the imposition of a death penalty sanction by the Texas Attorney General. Injunctive Relief 10. Based on the facts and circumstances pleaded herein, Plaintiffs seek temporary and permanent injunctive relief relieving Plaintiffs from any duty to comply with the Act in connection with the scope of the requests at issue and any substantially similar requests pending or received and prohibiting all appropriate law enforcement agencies, including but not limited to the Bexar County District Attorney's Office and the Texas Attorney General's Plaintiff's Original Petition for Declaratory Judgment PageS
Office, from taking any civil or criminal enforcement of the Act pending the outcome of these proceedings and after such proceedings which may be inconsistent with the court's action in this case.. Reservation of Rights: 11. The Commissioner, in his individual capacity, does not currently assert but reserves the right to assert in this forum and reserves the right to assert and litigate federal claims in a federal forum at a future date within the applicable statute of limitation, that the opinions of the Texas Attorney General constitute a custom, practice and policy of his Office depriving the Commissioner (and all other Texas local governmental officials and local government employees) of their state and federally protected constitutional rights based on the facts and circumstances described herein and the subsequent determination of the law, rights, duties and obligations of the parties. All such rights are all clearly established state and federal constitutional protections derived from Article 1, Sections 8, 9,10,13, 16,17 and 19 of the Texas Constitution and the First, Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution enforced through 42 U.S.C. 1983 and 42 U.S.C. 1988, and the right to seek declaratory judgment pursuant to 28 U.S.C. 2201 and Federal Rule of Civil Procedure 57. Discovery 12. Discovery, if necessary, is intended to be conducted under Level 2 of Rule 190.3, Texas Rules of Civil Procedure, however the legal interpretation of the Act may be determinative and may not require any discovery by the parties. Plaintiffs Original Petition for Declaratory Judgment Page 6
Parties 13. Tommy Adkisson is an individual who is also the duly elected County Commissioner of Bexar County Precinct 4. The Commissioner's office is located at 100 Dolorosa, Bexar County Courthouse, Room 1.2, San Antonio, Texas. The Commissioner resides at 178 Golden Crown, San Antonio, Bexar County, Texas 78223. Commissioner Adkisson sues in his individual and official capacity and has standing to sue as the individual and elected official directly affected by the actions of and the customs, policies and practices of the Texas Attorney General as described herein. Additionally, the Texas Attorney General designates every elected official of a county as a "public information officer" for his elected office when applying the Act. 14. Bexar County, Texas is a County under the laws and Constitution of the State of Texas. Bexar County, Texas sues as the governmental body receiving an opinion of the Texas Attorney General pursuant to the Act, Texas law and as authorized by Bexar County Commissioners Court action on June 21,2010. 15. Defendant Greg Abbott is the duly elected Texas Attorney General, who is charged with interpreting the Act, enforcing its criminal provisions, and also charged with defending the constitutionality of Texas statutes, including the Act. Plaintiffs request the Clerk of the Court issue citation so that he may be served with citation at the Texas Attorney General's Office, 209 West 14th Street, Austin, Texas. Plaintiffs will issue service by means of the Travis County Sheriffs Office and by certified mail pursuant to Texas Civil Practice and Remedies Code 30.004. Plaintiffs Original Petition for Declaratory Judgment Page 7
Venue 16. Venue is proper in Travis County under Section 15.002(a) (2), Texas Civil Practice and Remedies Code, and Section 552.353(b) (3), Texas Government Code. Notice Under Section 552.325(b) ofthe Public Information Act 17. Pursuant to Section 552.325(b) of the Act, in the course of filing this suit against the Attorney General, the Plaintiffs will make a timely, good faith effort to inform the requestors, of the following: 1) the existence of the suit, including the subject matter and cause number of the suit (once assigned) and the court in which the suit is filed; 2) their right to intervene in the suit or to choose to not participate in the suit; 3) the fact that the suit is against the Attorney General; and 4) the address and phone number of the Office of the Attorney General. The notice will be provided to the requestors by certified mail, return receipt requested as shown in Exhibit "F" attached. Attorneys Fees Sought 18. Plaintiffs retained the firm of DENTON, NAVARRO, ROCHA & BERNAL, P.C., to represent Plaintiffs in this action and have agreed to pay the firm reasonable and necessary attorneys' fees. An award of reasonable and necessary attorneys' fees would be equitable and just and authorized by Section 37.009 of the Texas Civil Practice and Remedies Code and by Section 552.323(b) ofthe Texas Government Code. Plaintiff's Original Petition for Declaratory Judgment Page 8
Prayer WHEREFORE, Plaintiffs requests that Defendant be cited to appear and answer, and that on final hearing prays Plaintiffs have judgment and the Court issue an order enjoining enforcement of the statute during the pending proceedings and declaring and holding that: A) The personal papers and effects of local government officials and local government employees are not subject to "open records searches" and compelled disclosure to the Texas Attorney General when applying the Act because the affected individuals do not fall within the term "governmental body" as that term is defined by the Act; B) The personal papers and effects of local government officials and local government employees do not meet the statutory definition of public information and therefore, are not 'subject to the Act; C) The Attorney General incorrectly and unilaterally determined the Plaintiffs did not comply with the procedural requirements ofthe Act when in fact they did; D) The documents at issue are not subject to the Act or alternatively are protected from disclosure under the Act; E) The Attorney General incorrectly applied the law regarding the definitions and exceptions, to the extent applicable; F) The Attorney General exceeded its authority and purpose of providing advisory opinions by unilaterally and arbitrarily rewriting Texas law; deciding the Plaintiffs did not comply with the procedural requirements of the Act and compelling production of non-governmental body owned or accessible information; Plaintiff's Original Petition for Declaratory Judgment Page 9
G) Awarding reasonable & necessary attorneys' fees, costs and expenses, to the extent permitted by law, to Plaintiffs for the bringing this suit; H) Plaintiffs complied with the Act in all things; I) Plaintiffs applied the correct definitions and scope of exemptions under the Act to the requests; J) Plaintiffs' information is excepted from disclosure; K) Plaintiffs have a compelling reason to keep the documents at issue excepted from public disclosure; and, L) Granting Plaintiffs such other relief to which it is shown to be entitled, together with attorneys' fees and costs. SIGNED this 24th day of June 2010 Respectfully submitted, DENTON, NAVARRO, ROCHA & BERNAL Professional Corporation 2517N. Main Avenue San Antonio, Texas 78205 TELEPHONE: (210) 227-3243 Facsimile: (210) 225-4481 george.hyde@rampage-sa.com lowell.denton@rampage-sa.com BY: ~COkL State Bar No. 45006157 LOWELL DENTON State Bar No. 05764700 ROSS FISCHER State Bar No. 24004647 ATTORNEYS FOR PLAINTIFFS Plaintiffs Original Petition for Declaratory Judgment Page 10