Court affirms dismissal of OA lawsuit

Mar. 16—The 11th Texas Court of Appeals, in a 2-1 decision, affirmed a lower court's decision to dismiss the Odessa American's lawsuit against the City of Odessa but both the majority and dissenting opinions agreed the City of Odessa has a history of skirting open record laws.

The OA's parent company, AIM Media, filed a lawsuit against the city three years ago alleging the city was violating the Texas Public Information Act by not releasing "basic" public information contained in public crime records within 10 days, as required by law.

"We remain staunchly committed to the merits of this case and to what our position represents for protecting the public's right to know about their local and state governments across Texas and to supporting the FOIA," said Jeremy L. Halbreich, Chairman & CEO, AIM Media Texas.

Chief Justice John M. Bailey and Justice Stacy Trotter, who upheld Judge Rodney Satterwhite's ruling, wrote "there is no evidence in the record" indicating the city will withhold information from the newspaper in the future. They also point out the OA can always seek legal remedies if the city does so.

The justices wrote they did not consider the merits of the OA's contention that the city delayed the release of information, but they also wrote this:

"The record before us demonstrates that the City—which at one time was willing and capable of providing basic information to media sources "within hours"—is now delaying the production of the same information for days, weeks, and even (in the case of the mass shooting) months. The City has offered little justification or reasons for its abrupt change in its policy and practice of releasing requested information, other than that it simply wanted to change it."

The justices wrote they were constrained because the legislature has limited the type of relief available under the TPIA.

Justice Bruce Williams disagreed with his colleagues in a lengthy written opinion, noting AIM Media was not seeking any money damages beyond attorneys' fees.

Williams wrote that AIM Media should have prevailed because the city had not met its "formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."

In fact, Williams wrote, "The record leaves little doubt that future noncompliance should reasonably be expected. It shows a consistent pattern of delays in producing basic information— in violation of the rights of the public and the press."

Williams said he agrees with Chief Justice Yvonne T. Rodriguez of the 8th Circuit Court of Appeals who recently wrote that a ruling similar to his colleagues' would have a "chilling effect" on the rights of citizens trying to obtain public information.

The justice further wrote the lawsuit isn't just about the OA making money by reporting the news.

"The question at issue is not only whether Appellant should be given information that will further Appellant's operations and profitability, but whether the community as a whole is given ready access to information that is necessary to maintain its safety and security and to hold law enforcement accountable for its activities," Williams wrote.

He, too, pointed out the record shows hundreds of records requests filed with the city have been delayed weeks and months.

"News media is dependent on its ability to promptly relay current information; it relies on access to public news—not olds," he wrote, adding it would be impossible to seek legal relief every time a TPIA request was delayed.

"By the time it was received it would be cost prohibitive and no longer news," Bailey wrote.

Justice Williams also wrote the city's attorneys are wrong when they argued they could legally withhold "basic information" about crimes and arrests for 10-15 business days and then seek an opinion from the Texas Attorney General's Office as to whether the information has to be released.

"No Texas court has ever adopted this view with regard to basic information," he wrote.

John Bussian, AIM Media's attorney, said the dissenting opinion is important for the public's right to get public information and also pointed out the merits of the majority opinion.

"Even the majority opinion hinted strongly that the justices felt the OA should win on the merits of the case but declined to rule on the OA's behalf because of technical jurisdiction issues."

Bussian said the dissent detailed the OA case never sought monetary damages from the City and that the case is not about money.

Justice Williams emphasized in his opinion this is not a case to recover money, therefore the rules that led to the dismissal of the case were incorrectly applied, Bussian added.

"As Judge Williams pointed out this case is not about the Odessa American generating profits from running a news reporting operation but rather this case involves a vital state constitutional right for Texans to access basic crime information."

Bussian also pointed out the OA was not alone in this effort to vindicate its constitutional right of access to government records. The Dallas Morning News, the Texas Press Association and the Freedom Of Information Foundation of Texas last year filed a Friend of the Court brief supporting the OA's position in the case.

The OA is considering asking the Texas Supreme Court to review and reverse the decision.

There are 10 things considered basic information, including a description of the crime committed, the time and location of the crime, the names of the officers involved and the identities of those involved.

Earlier this year Judge Satterwhite dismissed the lawsuit, declaring the issue "moot" because the city had ultimately provided the newspaper with the police records it had requested.

AIM Media asked the 11th Court of Appeals to rule that the city was violating the TPIA and to grant relief that would require the city to comply with the law's deadlines.

The Court of Appeals heard oral arguments inside the Ector County Commissioners Court back in December and issued its ruling early Thursday morning.