The 15th Court of Appeals has reversed a summary judgment for news organizations that made Public Information Requests for all materials, current and future, obtained by DPS in its investigation of the Uvalde school shooting. This doesn’t mean that some or all of the information won’t be released in the future, only that at this stage in the litigation, DPS presented sufficient evidence that the law enforcement exception applied to get over the summary judgment bar.
Texas Department of Public Safety and Christina Mitchell, in her Official Capacity as 38th Judicial District Attorney v. Texas Tribune, et al.) arose from the mass school shooting in Uvalde in May 2022. Almost immediately after the shooting, numerous news organizations made Public Information Requests (PIAs) for information related to the crime, the investigation, and law enforcement’s response. DPS withheld all information, citing the law enforcement exception to the Open Records Act. § 552.108, Government Code. The Open Records Division of the OAG generally concurred with DPS that the requested materials were exempt from disclosure. The organizations brought suit in Travis County seeking a writ of mandamus to compel DPS to disclose the information under the PIA (there are some 2.8 terabytes of relevant data). They moved for summary judgment, which the trial court, with certain exceptions, granted as to both information in the DPS’s current possession and any information acquired after the date of the PIA requests. The trial court also struck the DA’s plea in intervention. DPS and the DA appealed.
In an opinion by Justice Farris, the court of appeals reversed and remanded for trial. The law enforcement exception to the Open Records Act applies to “informaton which would reveal law enforcement techniques to the public, unduly interfere with law enforcement, and make it more difficult for an agency to do its job.” DPS argued that disclosure of the information would interfere with the investigation and that release of internal records or notations would interfere with law enforcement or prosecution. Because this case came to the court on appeal of a summary judgment, the court looked to TRCP 166(a) for the appropriate standard. Consequently, the news organizations had to show that summary judgment compelling disclosure “may only be granted if the movan shows the information is subject to disclosure as a matter of law.” Once the movant demonstrates that the information meets the disclosure criteria, the nonmovant must present evidence to raise a fact issue as to the application of an exception.
First, the court ruled that DPS had no legal obligation to produce documents that “did not exist or were not in DPS’s possession when the requests were made.” The organizations argued that DPS waived any objection to disclosure by not raising it in its summary judgment motion. Even so, the court reasoned, DPS had no statutory obligation to disclose and on appeal, a nonmovant that doesn’t respond to an MSJ unless the movant conclusively establishes its cause of action is free to make a legal sufficiency challenge on appeal. Since DPS didn’t have the information when the PIA requests were made, the news organizations couldn’t show that the information was “public information” not covered by the law enforcement exception. It was thus improper to grant mandamus with the effect of “requir[ing] a government entity to prepare or assemble new information in response to a request” (citation omitted). The news organizations tried again, arguing that DPS itself opened the door to the request by placing the 2.8 terabytes of data at issue in the case. Just because DPS produced several spreadsheets summarizing what it had, moreover, did not mean that it waived any protection from disclosure of the documents. At the very least, the court ruled, there is “a fact issue as to whether DPS intentionally relinquished or intentionally acted inconsistent with its argument that documents created or received after the News Organizations’ requests are non-responsive.” DPS’s first issue was sustained.
As to the information DPS had and withheld, the agency argued that it raised a fact issue about the applicability of the law enforcement exception. At the summary judgment stage, DPS was only required to produce “sufficient evidence to raise a fact issue on the exception’s application, a lighter burden than DPS must shoulder at trial.” Observing that its interpretation of the statutory language was a matter of first impression for the 15th Court, the court, following SCOTX, looked to authority based on the similar FOIA exception. Based on that precedent, the court ruled that DPS merely needed to present evidence that release of certain information would impede its investigation. DPS offered the testimony of the DA to the effect that the premature release of information prejudices criminal investigations for a number of reasons (e.g., witnesses change their stories, suspects learn they are targets, misleading information gets loose, victims are retraumatized, etc.). The DA concluded that in her case, “it would be appropriate to release the information only if a final decision was made to bring no prosecutions against law enforcement officers who responded to the shooting.” Testimony of the DPS Director alluded to the fact that the investigation was ongoing and the agency didn’t want to prejudice any potential prosecution by the DA. After reviewing this evidence, the court concluded that DPS had submitted more than a scintilla of evidence to raise a fact issue over the application of the law enforcement exception. In fact, DPS offered the same type of evidence typically used in FOIA cases.
Additionally, the court held that the trial court erred in ordering release of materials DPS obtained from federal agencies as part of its investigation. DPS argued that those materials were not “public information” under the PIA, but even if they were, they were exempt as well, either under the Texas act or the FOIA. The court bypassed the first question and ruled that DPS had raised a fact issue as to the application of the exception under Texas law. The news organizations argued further that since DPS didn’t give the federal agencies the statutorily required notice of their PIA requests, DPS was “procedurally barred.” The statute says no such thing, so the court dismissed the argument.
Finally, the court determined that the trial court properly struck the DA’s plea in intervention because she didn’t have a justiciable interest in the case. Her intervention was “not ‘almost essential’ to protect [the DA’s] interest because her interest is adequately protected in this litigation.” DPS already asserted the exception for the relevant information, so she didn’t bring anything new to the table.
