Adkisson Petition

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NO. _____________

TOMMY ADKISSON,

INDIVIDUALLY AND OFFICIALLY

ON BEHALF OF BEXAR COUNTY,

TEXAS, AS COUNTYCOMMISSIONERPCT.4

Plaintiffs

v.

GREG ABBOTT, ATTORNEY

GENERAL OF TEXAS,

Defendant

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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



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 self-

proclaimed 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.




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" .. .i f 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

Plain tiffs Original Petition for Declaratory Judgment



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 ofRights:

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 ofCivil 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



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.

Plaintif fs Original Petition for Declaratory Judgment



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.




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;

Plaintif f's Original Petition for Declaratory Judgment



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 AvenueSan Antonio, Texas 78205

TELEPHONE: (210) 227-3243

Facsimile: (210) 225-4481

[email protected]

[email protected]

BY: State Bar No. 45006157

LOWELL DENTON

State Bar No. 05764700

ROSS FISCHER

State Bar No. 24004647

ATTORNEYS FOR PLAINTIFFS

Pla int iff s Original Petition for Declaratory Judgment

Adkisson Petition

Documents

Transcript of Adkisson Petition