Attorney General Reconsiderations:
Reasonable Review or Unreasonable Delay
Governmental bodies in recent years have become increasingly likely to second-guess the Attorney General's open records opinions by filing requests for reconsideration. In a reconsideration request, a governmental body asks the Attorney General (AG) to overturn its own ruling-in other words, to reconsider its position as expressed in an open records letter (ORL).
In almost all of these cases, the request for reconsideration is filed in response to an AG ruling that declares information open to the public. The governmental body, preferring to keep the information closed, asserts that the original ruling was mistaken and asks that it be overturned. (Cases in which the AG has ruled information closed and a governmental body argues it should be open are few and far between.) The Public Information Act contains no provision that allows governmental bodies to file requests for reconsideration, but the AG accepts scores of these informal appeals every year.
The Act clearly outlines procedures for requesting and contesting Attorney General opinions. Section 552.301 requires an agency to ask for an opinion within 10 business days of receiving an open records request. If a governmental body refuses to supply "information that the Attorney General has determined is public information," the requester or the Attorney General may file suit for a writ of mandamus compelling the entity to disclose the information (§552.321). A public official who disagrees with an AG opinion may file a petition for a declaratory judgment, a writ of mandamus, or both, against the Attorney General seeking relief from compliance with an AG decision (§552.353(b)(3)).
Time, time, time is on their side
Instead of following the statute, public officials who are unhappy with an AG opinion frequently seek another one. When Mr. Jose Portela requested information from the City of Longview in July 1996, the city forwarded the request to the Attorney General-in October. Under the statute, information is presumed public after the 10th business day, and the AG found that the City had missed its deadlines. In January, 1997, Longview asked for a reconsideration of this decision. It filed an affidavit stating that the city received the request July 25, and mailed it out for an opinion October 5; its own affidavit clearly indicated that more than 10 business days had passed. The AG affirmed its original determination January 30, 1997. Although Longview had no new information to contribute, it asked for yet another reconsideration. On April 11, 1997-almost nine months after Mr. Portela made his request-the AG affirmed its position yet again and requested that the City stop asking for reconsideration and release the information. 1
Requests for reconsideration-once relatively rare-increased dramatically after the Legislature required the AG to issue open records rulings within 60 business days starting Jan. 1, 1996. Whereas the Attorney General ruled on only two requests for reconsideration in 1992, it ruled on 82 requests in 1996 and 100 in 1997. 2 By May 1998, the AG had responded to 62 requests for reconsideration, setting it on a path to issue nearly 150 reconsideration-related opinions during 1998. 3
The spurt of reconsideration requests may indicate that the AG has made more mistakes since the imposition of deadlines in 1996. Or it may suggest that governmental bodies, which once could count on the opinion process to delay a request long enough to drive away the requester, must now send such requests back through the review process in order to stall the release of information. 4
Consumers Union reviewed the 100 reconsideration letters issued during 1997 5 to determine if the informal rehearing process serves a useful function, or if reconsideration requests merely create unnecessary delay. We found that the AG upheld its original ruling in the majority of cases (61 out of 100). We also found that whenever a governmental body files a reconsideration request, it extends the review process by two to four months. As a result, 61 requesters in 1997 were kept waiting needlessly by requests for reconsideration that resulted in no change to the original opinion (the information was ruled public both times). 6
State agencies-which generally have large legal departments staffed with knowledgeable attorneys-account for a disproportionate number of requests for reconsideration compared to other governmental bodies. Although they generated only 26 percent of all open record letters issued in 1997 (745 out of 2,897), state agencies accounted for 46 percent of requests for reconsideration that received an AG response in 1997 (46 out of 100). 7 Furthermore, the Department of Insurance filed at least 13 reconsideration requests in 1997-which represents more than 10 percent of the 111 open records issues that the department sent to the AG for review during 1997.
Finally, we found that some public entities ask for reconsideration more than once on a single issue. The AG issued 10 reconsideration rulings in response to second requests for reconsideration from the cities of Corpus Christi and Longview, Harris County, the Comptroller of Public Accounts, the Department of Insurance, the Parks & Wildlife Department, and the Worker's Compensation Commission.
While the Office of the AG generally condones reconsideration requests, it sometimes expresses irritation with the lengths to which some public officials go to keep information secret. Last year, for instance, the Attorney General-responding to a request for reconsideration filed by the district attorney's office in Tom Green County-upheld its initial ruling and verbally slapped the DA for unnecessary delays. "The act requires a public records officer to 'promptly' produce public information" once the Attorney General has issued a ruling, the AG wrote on March 25, 1997. "We note that the District Attorney delayed nearly three months before asking this office to reconsider Open Records Letter No. 96-1755 (1996)." 8 The AG pointed out that the Act requires a governmental body to file "a cause of action seeking relief from compliance" with an AG's decision within 10 days of receiving the ruling. "Thus, as the District Attorney has not timely sought judicial relief from compliance with our ruling, he must 'promptly' release the information." 9 By that point, the requester, who filed the open records request on Dec. 22, 1995, had been waiting more than 15 months for the information.
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Once, Twice, Three Times and It's Still an Open Record
Corpus Christi officials must have believed the old adage "three's a charm" when they filed a trio of unsuccessful requests for reconsideration with the Attorney General in 1997 and 1998. The city sought to withhold information pertaining to a shooting victim as well as the disciplinary and commendation records of three police officers who apparently were involved in the altercation.
Mary Lee Grant, a reporter for the Corpus Christi Caller-Times, filed an open records request for the information on April 16, 1997. The city claimed that litigation relating to the shooting was reasonably anticipated, but the AG disagreed and ruled the information public in an open records letter (ORL) issued July 16, 1997. 1 City officials were unhappy with the ruling. If they had followed the Act, they would have filed a petition for a declaratory judgment or a writ of mandamus seeking relief from compliance with the decision.
Instead, they filed a request for reconsideration in August 1997, which the AG agreed to review. On Oct. 2, 1997, the AG issued ORL 97-2229, upholding its original ruling that litigation was not reasonably anticipated and that the information was public. 2 Corpus Christi officials filed a second request for reconsideration on Oct. 14. This time they bolstered their case by pointing out that a lawsuit relating to the shooting had been filed against the city on Sept. 25, 1997. The AG was unimpressed. It responded on Dec. 5 with ORL 97-2658, which again upheld the original determination that the information was public. 3
By that point, the AG seemed to have grown weary of Corpus Christi's delaying tactics. In the Dec. 5 opinion, the AG stated that even though a lawsuit had been filed, it came nearly six months after the original request for information was made. "After reviewing your arguments, and taking into consideration the time that has elapsed since the original request and ruling, we decline to review the city's subsequent claims regarding this matter," the AG wrote.
"We believe that, at the time we issued the ruling, taking into consideration all the facts presented to us by the city at that time, litigation was not reasonably anticipated as of the date the city received the request for records. To permit the city to continue to raise additional reasons under the litigation exception, six months after receiving the original request, would be an unreasonable extension of the deadlines provided for in the Open Records Act." 4
City officials dared to submit a third request for reconsideration on Dec. 18, 1997, and the AG considered it again, but dismissed Corpus Christi's claims for the last time in an open records letter issued Feb. 6, 1998. 5
1 Texas Attorney General's Office, Open Records Letter 97-1622 (7/16/97).
2 Texas Attorney General's Office, Open Records Letter 97-2229 (10/2/97).
3 Texas Attorney General's Office, Open Records Letter 97-2658 (12/5/97).
4 Ibid.
5 Texas Attorney General's Office, Open Records Letter 98-0382 (2/6/98). |
When the AG Changes It's Mind
While the AG upheld its original decision to make documents public 61 times in 1997, the office overturned in whole (27 cases) or in part (11 cases) its initial opinion in 38 out of 100 cases.10 Thirty-seven of these reconsideration rulings were unfavorable to public access (i.e., the AG overturned or partially overturned previous rulings that favored openness) and one ruling was favorable.11
Consumers Union reviewed the 37 reconsideration rulings that were unfavorable to public access. We could not review the records at issue (since they are now confidential) and we did not have the resources to review every document in each case file. Therefore, our analysis is not conclusive. 12 Still, the information available in the opinion letters indicates that, in most cases, the issues raised in these 37 requests for reconsideration could have been resolved in the initial open records ruling if all parties followed the procedures for Attorney General decisions set out in the Act.
Fifteen of the reconsideration requests that resulted in a new decision could be traced to problems at the Open Records Division itself. In some cases, the Attorney General mistakenly asserted that the governmental entity missed the deadline to seek an AG opinion. If an agency misses the deadline, information is presumed open unless closed by statute or some other compelling interest, such as third-party rights. When the governmental body proved it had not missed the deadline, the AG reconsidered the issues and overturned its initial decision. 13
While the Open Records Division tries to discourage governmental bodies from asserting the same arguments in a reconsideration request that they made the first time around, the AG occasionally changes its mind and overrules its original opinion based on a restatement of more or less same arguments, sometimes with additional facts. 14 The AG also occasionally allows a governmental body to assert new arguments in a request for reconsideration when the first ones did not succeed. 15
Fourteen of the reconsideration requests involve problems at the agency level that also can be addressed by greater attention to the procedures set out in the Act. Governmental bodies occasionally do not clarify a request with the requester initially, but wait until after they get a decision from the AG. 16 Also, entities sometimes miss the deadline for sending information to the AG. If they return for a reconsideration with a "compelling interest" (such as a third-party interest or a statutory mandate), the Open Records Division overturns its initial decision.17
Sometimes, following an initial ruling in favor of openness, governmental bodies will muster new information to back up their initial case for confidentiality. Although such behavior undermines the time frames that were put in place to ensure that the Attorney General produces a reasonable open records ruling in a reasonable time, the AG will occasionally consider these arguments.18 This should not happen, however, since the AG generally takes supplemental information at any time before issuing an initial ruling. With that much flexibility in the system, governmental bodies should be able to provide the necessary information in the time allotted.
Moreover, after an AG opinion in favor of openness, a governmental body will sometimes hold back the information while the Legislature debates a new statute or the AG takes briefs for a new Open Records Decision (ORD) which might affect the confidentiality of the information in the future. 19 Regardless of the potential outcome of proposed new legislation, public officials should release information to requesters at the moment they receive a decision from the AG based on existing precedent, rather than stalling and then trying to apply new laws retroactively. The Attorney General encourages this behavior by reconsidering these requests in light of a new statute or ORD.
Four reconsideration requests that resulted in a new decision were initiated by third parties that generally failed to prove a case under the trade secret exception the first time around. 20 In these cases, the AG appears to have accepted additional arguments or information. But, like governmental entities that fail to prove their case in the time allotted, these third parties also have adequate time, and receive adequate notice, to supply the Attorney General with the information it needs before the initial opinion comes out.
Although not required under the Act, the AG notifies affected parties when it receives a request for an opinion involving third-party information. The notice gives specific guidance on the legal standard for proving a trade secret case (or other relevant exception), and includes copies of the most important ORDs. This detailed guidance puts third parties on clear notice, yet some fail to provide necessary information until after the AG rules against them.
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Reconsideration Endnotes
1 Texas Attorney General's Office, Open Record Letters OR97-0194 (1/30/97), OR97-0539 (4/11/97).
2 The Texas Attorney General's Office provided a list of rulings on requests for reconsideration issued during 1995-98. Consumers Union manually reviewed all open records letters issued during 1988-94 to determine the number of reconsideration rulings for that period.
3 Reconsideration data for 1998 provided by Texas Attorney General's Office.
4 Sandra Coaxum, Open Records Division chief, disputes the idea that requests for reconsideration may be a delay tactic. "It's my sense that agencies, governmental bodies, are only raising exceptions when they're legitimate exceptions, because there's no real advantage to asking the Attorney General for a ruling" if the information is clearly public. "I mean, it's not going to buy you that much time." Interview with Sandra Coaxum, Texas Attorney General's Office, 10/6/98.
5 Data provided by the Texas Attorney General's Office indicate that the AG issued 110 reconsideration rulings in 1997. However, inspection of all 110 rulings revealed that 10 were actually issued in response to requests for clarification, rather than reconsideration, leaving 100 AG opinions on requests for reconsideration issued during 1997.
6 Consumers Union reviewed each reconsideration ruling for 1997 to determine the outcome and how long requesters had waited.
7 Consumers Union reviewed all open records letters written in 1997 to determine how many addressed issues raised by state agencies. Reconsideration data for 1997 provided by Texas Attorney General's Office.
8 Texas Attorney General's Office, Open Records Letter 97-0619 (3/25/97), italics added.
9 Ibid. In making this argument, the AG inadvertently highlighted the weakness of the reconsideration process. The AG told the DA that filing a petition pursuant to the Act "is the only form of relief the legislature expressly provided a governmental body from compliance with an open records decision" (italics added). Clearly, the reconsideration process is a form of relief from compliance with AG rulings for which there is no provision in the Public Information Act.
10 In the 100th case, the AG sent the issue back to the agency for a ruling after the requester "raised relevant disputed factual and legal issues" that the AG could not itself resolve. Texas Attorney General's Office, Open Records Letter 97-1224 (5/27/97).
11 Texas Attorney General's Office Open Records Letter 97-1029 (5/5/97).
12 In particular, we could make no determination at all about the issues involved in four open records letters that were overturned because the opinion provided insufficient discussion of the issues to allow interpretation. See Open Records Letters 97-0326 (2/11/97), 97-1674 (7/23/97), 97-2647 (12/5/97) and 97-2739 (12/12/97).
13 Open Records Letters 97-0318 (2/10/97), 97-0719 (4/4/97), 97-0849 (4/16/97), 97-1372 (6/12/97), 97-1468 (6/26/97) and 97-1506 (6/30/97).
14 Open Records Letters 97-0251 (2/5/97), 97-0373 (2/19/97), 97-0477 (3/4/97), 97-0778 (4/11/97), 97-1220 (5/27/97), 97-2716 (12/11/97) and 97-2808 (12/19/97).
15 Open Records Letter 97-1659 (7/21/97) and 97-2428 (11/3/97).
16 Open Records Letter 97-2289 (10/14/97).
17 Open Records Letters 97-0644 (3/28/97), 97-1381 (6/13/97), 97-1405 (6/16/97), 97-2024 (9/11/97), 97-2102 (9/18/97) and 97-2745 (12/12/97).
18 Open Records Letters 97-0867 (4/17/97), 97-1121 (5/15/97), 97-1753 (8/1/97), 97-2034 (9/11/97) and 97-2636 (12/3/97).
19 Open Records Letters 97-0550 (3/18/97) and 97-2088 (9/18/97).
20 Open Records Letters 97-1469 (6/26/97), 97-2199 (9/30/97), 97-2254 (10/9/97) and 97-2717 (12/11/97).
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