stating that no Texas statute has defined “member of the public”
How later courts described this case
- stating that no Texas statute has defined “member of the public”
- describing "participants in a trial" as including "the judge, attorneys, parties, witnesses, and jury"
Written by the judges who cited it.
The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00604-CV
The Austin Bulldog, Appellant
v.
Lee Leffingwell, Mayor, Chris Riley, Council Member Place 1, Mike Martinez,
Mayor Pro Tem, Place 2, Randi Shade, Council Member Place 3, Laura Morrison,
Council Member Place 4, Bill Spelman, Council Member Place 5, Sheryl Cole,
Council Member Place 6, and the City of Austin, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-11-000639, HONORABLE TIM SULAK, JUDGE PRESIDING
OPINION
The sole issue in this appeal, and one of first impression for a Texas appellate court,
is whether the Public Information Act’s exception to disclosure for “an email address of a member
of the public”1 shields from disclosure the personal email address of an elected official when that
email address is used to transact official government business. Appellees, the mayor of Austin and
various members of the Austin City Council in office during 2011 (collectively, the City Officials),
responded to open-records requests from appellant, The Austin Bulldog, by producing the public-
information emails requested, but relying on the above-described exception and a letter ruling from
the Texas Office of the Attorney General, redacted from those emails their own personal email
addresses. The Austin Bulldog sued the City seeking unredacted copies of the emails, but on cross-
1
Tex. Gov’t Code § 552.137(a). The Public Information Act (PIA) is codified in
Chapter 552 of the Texas Government Code. See generally id. §§ 552.001–.353.
motions for summary judgment, the district court ruled in favor of the City Officials. Based on
our conclusion that the redacted email addresses do not fall under the PIA’s member-of-the-public
email-address exception and, therefore, must be produced as public information, we reverse the
district court’s summary judgment and render judgment in favor of The Austin Bulldog.
Background
The facts of this case are undisputed. The Austin Bulldog2 filed several open-records
requests in 2011 requesting, generally, all public information3 contained in emails between the
mayor, council members, and the city manager. The requests were broadly worded to encompass
all emails involving City business, whether they were transmitted on City-owned or personal
devices and whether using City-assigned or personal email addresses.4 The City produced some of
the requested information immediately, but sought an Attorney General ruling on the documents
2
The Austin Bulldog, which is the assumed name for the Texas nonprofit corporation
the Austin Investigative Reporting Project, describes itself as an “independent online news
site for investigative reporting in the public interest.” FAQs, THE AUSTIN BULLDOG,
http://www.theaustinbulldog.org (last visited Jan. 15, 2016).
3
When The Austin Bulldog made its request, the PIA defined public information as
“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.” See Act of May 29,
1995, 74th Leg., R.S., ch. 1035, § 2, sec. 552.002, 1995 Tex. Gen. Laws 5127, 5127 (current version
at Tex. Gov’t Code § 552.002(a)). The Legislature’s 2013 amendments to the definition, while
significant, are not at issue here. See Tex. Gov’t Code § 552.002 (defining “public information” as
“information that is written, produced, collected, assembled, or maintained under a law or ordinance
or in connection with the transaction of official business” by or for a governmental body or “by
an individual officer or employee of a governmental body in the officer’s or employee’s official
capacity and the information pertains to official business of the governmental body”).
4
See Adkisson v. Paxton, 459 S.W.3d 761, 770–75 (Tex. App.—Austin 2015, no pet.)
(holding that official-capacity emails held by government official in his personal email accounts are
public information under the PIA).
2
it withheld, asserting that the information was not public information because it did not reference
City business.5 The City produced the withheld information after the Attorney General’s office
issued a letter opinion advising the City that most of the requested emails were subject to disclosure
under the PIA because they “consisted of communications sent to or from the city council members
in their capacity as city officials.” The City redacted from that information, however, the personal
email addresses of the City Officials, citing the letter ruling’s instruction that it do so based on PIA
section 552.137’s exception from disclosure for the “email address of a member of the public”
“unless the member of the public consents to its release.”6
Taking issue with the City’s redaction, The Austin Bulldog filed the underlying suit
in Travis County District Court seeking declaratory judgment that the personal email addresses of
the City Officials in this context were not protected from disclosure under the exception7 and asking
for mandamus relief ordering disclosure of unredacted copies of the emails.8 The parties filed cross-
motions for summary judgment joining issue on the applicability of the member-of-the-public email-
address exception, specifically on whether the City Officials are, in this context, “members of
5
See Tex. Gov’t Code § 552.301(a) (directing governmental body seeking to withhold
requested documents to request ruling from Attorney General as to whether documents are subject
to PIA exception).
6
See id. § 552.137(a) (exception to disclosure for email address of member of public), (b)
(owner must affirmatively consent to release).
7
See id. § 552.3215 (authorizing suit for declaratory or injunctive relief in district court);
see generally id. §§ 552.321–.327 (provisions regarding civil enforcement of PIA, including venue).
8
See id. § 552.321 (authorizing suit for writ of mandamus).
3
the public.” And it is on that same issue that The Austin Bulldog challenges the district court’s
summary judgment in favor of the City.9
Discussion
We begin with a review of the purposes, goals, and structure of the PIA. The
Legislature expressly provides in the PIA that it is the policy of this State that the public
have “complete information about the affairs of government and the official acts of public
officials and employees.”10 The PIA is aimed at preserving a fundamental tenet of representative
democracy—“that the government is the servant and not the master of the people,” and reflects the
public policy that the people of Texas “remain[] informed so that they may retain control over the
instruments they have created.”11 To advance these policy goals, the Legislature has directed that
we “liberally construe” the PIA in favor of disclosure of requested information.12
9
Because the parties do not dispute the relevant facts, this is a proper case for summary
judgment. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000); see
Tex. R. Civ. P. 166a (providing that summary judgment is appropriate “if there is no genuine issue
also as to any material fact and the moving party is entitled to judgment as a matter of law”). On
cross-motions for summary judgment, each party bears the burden of establishing that it is entitled
to judgment as a matter of law. See City of Garland, 22 S.W.3d at 356 (citing Guynes v. Galveston
Cty., 861 S.W.2d 861, 862 (Tex. 1993)). When the trial court grants one motion and denies the
other, we should determine all questions presented and render the judgment that the trial court
should have rendered. See id. (citing Commissioners Court of Titus Cty. v. Agan, 940 S.W.2d 77,
81 (Tex. 1997)).
10
Tex. Gov’t Code § 552.001(a); see Jackson v. State Office of Admin. Hearings,
351 S.W.3d 290, 293 (Tex. 2011) (discussing policy and purpose of PIA).
11
Tex. Gov’t Code § 552.001(a); see Jackson, 351 S.W.3d at 293.
12
See Tex. Gov’t Code § 552.001 (“This chapter shall be liberally construed in favor of
granting a request for information.”).
4
In keeping with these fundamental purposes of promoting transparency in
government, the PIA’s key provisions require that (1) “[p]ublic information is available to the public
at a minimum during the normal business hours of the governmental body”;13 and (2) an “officer
for public information of a governmental body shall promptly produce public information . . .
on application by any person to the officer.”14 The remaining provisions of the PIA effectuate
these mandates by, generally speaking, defining the applicability of the PIA and its various terms as
necessary;15 creating a process for public-information requests, including administrative procedures
and judicial review;16 and specifying limited categories of public information that can or must be
excluded from disclosure even if properly requested,17 in part to protect the personal privacy
of individuals.18 In sum, the PIA generally obligates the government to make public information
reasonably available to whomever properly requests it. Only if the requested public information
falls under one of the PIA exceptions to disclosure or is made confidential by external law—the
government’s burden to show19—does this obligation change.
13
Id. § 552.021.
14
Id. § 552.221.
15
See id. § 552.001–.012 (general provisions).
16
See id. §§ 552.201–.353 (officer for public information, procedures related to access,
charges for providing copies, attorney-general decisions, civil enforcement, criminal violations).
17
See id. §§ 552.101–.156 (information excepted from required disclosure).
18
See, e.g., City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010) (acknowledging
PIA’s interest in protecting personal privacy of individuals).
19
See Adkisson, 459 S.W.3d at 772 (holding that it is government’s burden to show that
information it seeks to withhold is either not public information or is subject to an exception (citing
Thomas v. Cornyn, 71 S.W.3d 473, 480–81, 488 (Tex. App.—Austin 2002, no pet.) (explaining that
placement of burden of proof upon governmental body in judicial proceeding is consistent with
5
As noted, there are no underlying fact issues, and the parties do not dispute that The
Austin Bulldog’s request was proper and that the requested information is “public information.” The
only dispute here is whether the PIA’s member-of-the-public email-address exception applies to the
personal email addresses of the City Officials on the facts before us. Thus, we are presented with
matters of statutory construction, which are legal questions.20 Specifically, whether information is
subject to the PIA and whether an exception to disclosure applies to the information are questions
of law that we review de novo.21
The member-of-the-public email-address exception, originally enacted in 2001 along
with a somewhat-related exception for government-collected credit-card and debit-card numbers,22
makes confidential and excludes from required disclosure “an e-mail address of a member of the
public that is provided for the purpose of communicating electronically with a governmental body.”23
We agree with The Austin Bulldog that the email addresses here—i.e., the personal email addresses
of City officials used to communicate official City business—do not qualify under the member-of-
PIA’s strong policy favoring disclosure of public information and PIA’s placement of burden on
governmental body when seeking open-records determination from attorney general))).
20
City of Garland, 22 S.W.3d at 356 (citing Johnson v. City of Fort Worth, 774 S.W.2d 653,
656 (Tex. 1989)).
21
Id. (citing A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995)).
22
See Act of May 14, 2001, 77th Leg., R.S., ch. 356, § 1, 2001 Tex. Gen. Laws 651, 651–52
(current versions codified at Tex. Gov’t Code §§ 552.136 (credit-card, debit-card, charge-card, and
other access-device numbers), .137.
23
Id. § 552.137(a). The email address may be disclosed “if the member of the public
affirmatively consents to its release.” Id. § 552.137(b). Although not implicated here, the exclusion
does not shield email addresses that are, stated generally, provided in connection with securing
government contracts or with ongoing government contracts, or public comment in state-licensing
matters. See id. § 552.137(c).
6
the-public email exception. Specifically, under a plain-meaning review of the provision and the
statute,24 they do not meet the exception’s requirement that the qualifying email address be from a
“member of the public.”25
“Member of the public” is not defined by the PIA, or any other Texas statute as far
as we have found, so we look to its plain and common meaning in construing the exception.26
Simply and broadly, as conveyed by its component words, “member of the public” means a
person who belongs to the community or people as a whole.27 The City Officials urge that this is
the phrase’s plain and common meaning and, thus, the meaning we should adopt in construing
the exception. Therefore, the City Officials assert, because they are each undeniably “a person who
24
See, e.g., City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008) (“In construing
statutes, we ascertain and give effect to the Legislature’s intent as expressed by the language of the
statute. We use definitions prescribed by the Legislature and any technical or particular meaning
the words have acquired. Otherwise, we construe the statute’s words according to their plain and
common meaning.” (internal citations omitted) (citing Tex. Gov’t Code § 311.011(a) (“Words and
phrases shall be read in context and construed according to the rules of grammar and common
usage.”); State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006); Texas Dep’t of Transp. v. City of
Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)).
25
See Tex. Gov’t Code § 552.137(a) (“Except as otherwise provided by this section, an
e-mail address of a member of the public that is provided for the purpose of communicating
electronically with a governmental body is confidential and not subject to disclosure under this
chapter.”) (emphasis added).
26
See City of Rockwall, 246 S.W.3d at 625; Shumake, 199 S.W.3d at 284.
27
See, e.g., The American Heritage Dictionary of the English Language 1097 (defining
“member” as “one that belongs to a group or organization”), 1424 (defining “public” as “the
community or people as a whole”) (5th ed. 2011); see also Beeman v. Livingston, 468 S.W.3d 534,
542 (Tex. 2015 ) (defining “public” as “the community as a whole”); Gerald F. Gaus, Social
Philosophy 19 (M.E. Sharpe, Inc. 1999) (“Suppose, we could publicly justify a public morality in
the following senses: (1) the morality is public in that it applies to each and every member of the
public; and (2) it is publicly justified in the sense that we can show that it is reasonable for each and
every member of the public to accept it.”).
7
belongs to the community as a whole,” they fall under the exception. While we agree that this can
be a plain and common meaning of “member of the public,” we disagree that it is the plain and
common meaning in the context of the email-address exception specifically and the PIA generally.
And as the supreme court has emphasized on numerous occasions, context matters.28
When “member of the public” is used in conjunction with an identified or identifiable
group (or groups)—as it is here with “governmental body”—its meaning is contextually modified
to mean a person who does not belong to the identified group. Stated another way, when used in
context with another category or group of people, whether specifically identified or simply
understood, “member of the public” is a shorthand way to identify someone who does not belong
to the other group. This meaning of “member of the public” is best supported (and illustrated) by
citing a few of the many examples of its usage in both legal and non-legal contexts.
• Dow Chemical Company v. U.S.—In a case involving the constitutionality of the EPA’s
aerial photography of a chemical-manufacturing facility, the Supreme Court used “members
of the public” to describe anyone not employed by or associated with Dow Chemical
Corporation. Specifically, after describing the security precautions Dow Chemical had taken
at its manufacturing facility, the Court noted, “In addition to these precautions, the open-air
plants were placed within the internal portion of the 2,000-acre complex to conceal them
from the view of members of the public outside the perimeter fence.”29
28
See, e.g., TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 2011)
(“Language cannot be interpreted apart from context.”); see also Jaster v. Comet II Constr., Inc.,
438 S.W.3d 556, 572 (Tex. 2014) (Willett, J, concurring) (“Meaning is bound to and bound by
context. Words derive substance from the ecosystem of language in which we find them, and we
must ‘consider the entire text, in view of its structure and of the physical and logical relation of its
many parts.’”) (citing Antonin Scalia & Bryan A. Garner, Reading Law 167 (2012)).
29
476 U.S. 227, 241 (1986) (emphasis added); see PGA Tour, Inc. v. Martin, 532 U.S. 661,
665 (2001) (“Any member of the public may enter the Q–School by paying a $3,000 entry fee and
submitting two letters of reference from, among others, PGA TOUR or NIKE TOUR members.”);
see also American Broad. Cos., Inc. v. Aereo, Inc., __U.S. __, 134 S. Ct. 2498, 2510 (2014) (in
copyright case, distinguishing between “members of public” and owners or possessors of the
8
• Gannet Company v. DePasquale—In a case involving the constitutional right to attend
criminal trials, the Supreme Court used “members of the public” to distinguish between
the participants in a trial—e.g., the judge, attorneys, parties, witnesses, and jury—and
everyone else: “The question presented in this case is whether members of the public have
an independent constitutional right to insist upon access to a pretrial judicial proceeding,
even though the accused, the prosecutor, and the trial judge all have agreed to the closure of
that proceeding in order to assure a fair trial.”30
• In a recent New York Times article about a donation to Yale University, the author used
the phrase “members of the public” to refer everyone who is not an official part of the
Yale University community: “Mr. Schwarzman had several discussions with Mr. Salovey,
in which they found themselves re-envisioning Commons as a place to unite the various
constituencies on campus—undergraduates, graduate and professional students, faculty, staff
and alumni, as well as members of the public—even as it raised Yale’s profile.”31
In each of the above examples, “members of the public” does not refer to the phrase’s broad
meaning of “members of the community as a whole.” Instead, considering the phrase’s use in
context—specifically, in connection with another specifically identified group—it is clear that
“members of the public” in each of these examples means everyone who is not part of the defined
or described group.
Relatedly, and particularly relevant to this case, the phrase “member of the public”
is often used to differentiate between ordinary citizens and the government that was created by and
is comprised of those citizens. This usage may reflect the distinction between “the people” and the
copyrighted work); Minnesota State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 284 (1984)
(distinguishing between “members of the public” and state legislatures, Congress, public employees,
and college instructors).
30
443 U.S. 368, 370 (1979) (emphasis added).
31
Robin Pogrebin, Schwarzman Gives $150 Million for a Performing Arts Center at Yale,
THE NEW YORK TIMES, May 12, 2015, at C1 (emphasis added).
9
instrument of “government [as their] servant,”32 but it is more likely simply a result of the phrase
being used to distinguish the government and a separate identified group. Regardless, its intended
meaning is clear from its use in context, including the following statutory examples from the
Texas Legislature:
• Open Meetings Act—“A meeting of a governmental body may be held by videoconference
call only if: (1) the governmental body makes available to the public at least one suitable
physical space . . . that is equipped with videoconference equipment . . . by which a member
of the public can provide testimony or otherwise actively participate in the meeting; (2) the
member of the governmental body presiding over the meeting is present at that physical
space; and (3) any member of the public present at that physical space is provided the
opportunity to participate in the meeting . . . .”33
• Texas Geosciences Practice Act—“Complaints and investigations under this chapter are of
two types: (1) complaints received from a member of the public; and (2) complaints and
investigations that are initiated by the [Texas B]oard [of Professional Geoscientists]. . . .
The board by rule shall prioritize complaints and investigations. . . . [W]ith regard to
complaints that do not allege an action that may harm the public, a complaint filed by a
member of the public takes precedence over a complaint initiated by the board.”34
• Texas Government Code, Ethics—“The [Texas Ethics C]ommission shall remove the home
address of a judge or justice from a financial statement filed under this subchapter before:
(1) permitting a member of the public to view the statement; or (2) providing a copy of the
statement to a member of the public.”35
In these examples, “member of the public” plainly refers to any person who does not belong to
the agency that is the subject of the provision—i.e., the agency having a meeting under the
32
Tex. Gov’t Code § 552.001(a); see also id. (noting that “government is the servant and not
the master of the people”).
33
Id. § 551.127(c) (emphases added).
34
Tex. Occ. Code § 1002.154 (a-1), (a-2) (emphases added).
35
Tex. Gov’t Code § 572.032(a-1); see id. § 572.021 (requiring officers, candidates, and
party chairs to file financial statements with Texas Ethics Commission) (emphases added).
10
Open Meetings Act, the Texas Board of Professional Geoscientists, and the Texas Ethics
Commission, respectively. The City Officials’ suggested construction here, on the other hand—i.e.,
that the phrase be read as “a person who is part of the community as a whole” or, in essence,
anyone—would render these provisions meaningless, absurd, or both. We must avoid such
constructions if possible.36
In cases involving law enforcement, the Supreme Court similarly juxtaposes the
phrase “members of the public” with “the police” or “police officers” to indicate anyone who is not
associated with the police: “[T]he law ordinarily permits police to seek the voluntary cooperation
of members of the public in the investigation of a crime”;37 and “Any member of the public flying
in this airspace who glanced down could have seen everything that these [police] officers
observed.”38 And the Texas Supreme Court has followed this practice: “Sheriff’s Department
employees also disclose JIMS information to attorneys and members of the public who call in to
inquire about pending warrants.”39 Likewise, both the print media and scholarly texts use “member
36
See, e.g., Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256
(Tex. 2008) (“The Court must not interpret the statute in a manner that renders any part of the
statute meaningless or superfluous.” (citing City of Marshall v. City of Uncertain, 206 S.W.3d 97,
105 (Tex. 2006))); Alejos v. State, 433 S.W.3d 112, 121 (Tex. App.—Austin 2014, no pet.) (noting
“absurd results” concept is “check against blindly narrow and out-of-context readings of statutory
language that the Legislature could not possibly have meant” (citing T.C.R. v. Bell Cty. Dist.
Attorney’s Office, 305 S.W.3d 661, 671–72 (Tex. App.—Austin 2009, no pet.); J. Woodfin Jones,
The Absurd–Results Principle of Statutory Construction in Texas, 15 Rev. Litig. 81 (1996))).
37
Illinois v. Lidster, 540 U.S. 419, 425 (2004) (emphasis added).
38
California v. Ciraolo, 476 U.S. 207, 213, 223 (1986) (emphasis added).
39
Pruett v. Harris Cty. Bail Bond Bd., 249 S.W.3d 447, 450 (Tex. 2008) (emphasis added).
11
of the public” to differentiate between the government and regular citizens, including between the
police and non-police:
• “It all begins in Times Square, where a large duffel bag has been abandoned. Despite all
those public service advertisements, it is not a member of the public who first becomes
alarmed by the unattended package. It’s a beat cop . . . .”40
• “Despite an objection by [Austin City Council Member Kathy] Tovo, the council allowed
only 30 minutes for members of the public to speak against the proposal.”41
• “The IRS handles nearly 160 million tax returns each year and more than 100 million phone
calls, interacting with more members of the public than any other federal agency.”42
• “However, during the more than 25 years since the first recognition of the disease, mortality
of snow geese has never again been reported by a member of the public to a conservation
officer in the area . . . .”43
• “In England and Wales, a medical practitioner who becomes aware . . . that a patient he or
she is attending is suffering from food poisoning, is legally required . . . to notify the . . .
appropriate local health authority.” . . . . Notification of food poisoning may also be made
by a member of the public.”44
Again, it is clear from the context of these examples that “member[s] of the public” refers to anyone
who is not part of the agency or governmental body that is referenced in the example. To read the
40
Neil Genzlinger, Review: In ‘Blindspot,’ an Amnesiac’s Tattoos Are the Clues,
THE NEW YORK TIMES (Sep. 20, 2015), http://www.nytimes.com/2015/09/21/arts/television/
review-in-blindspot-an-amnesiacs-tattoos-are -the-clues.html (emphasis added).
41
Mary Huber, Austin City Council unanimously approves urban rail plan, THE
D AILY T EXAN (June 26, 2014), http://www.dailytexanonline.com/ 2014/06/26/
austin-city-council-unanimously-approves-urban-rail-plan (emphasis added).
42
Lori Montgomery, IRS Watchdog says customer service will suffer, THE WASHINGTON
POST, Jan. 15, 2015, at A12 (emphasis added).
43
Gary A. Wobeser, Essentials of Disease in Wild Animals (Blackwell Pub. 2006) (emphasis
added).
44
Microbial Food Poisoning 139 (Adrian R. Eley ed., 2d ed. 1992) (emphasis added).
12
phrase as including the people who are part of the agency, which would be the necessary result of
the City Officials’ suggested construction, would make these examples nonsensical.
In sum, the common and ordinary meaning of the phrase “member of the public”
depends, as does the meaning of all words and phrases, on context.45 Standing alone or without
reference to another group, it means a person who belongs to the community as a whole. When used
in relation to another group, it means anyone who is not a part of the other group. In the email-
address exception, “member of the public” does not stand alone. Its companion is the governmental
body to which the email at the heart of the exception was sent: “an e-mail address . . . provided for
the purpose of communicating . . . with a governmental body.”46 Accordingly, we hold that “member
of the public” in PIA section 552.137 does not include a person who is part of the governmental
body that was “communicat[ed] . . . with” by email.
The City’s argument that “member of the public” means “any person who belongs
to the community as a whole” would shield without distinction every email address provided to a
governmental body, rendering the “member of the public” language superfluous and the provision
itself meaningless, and we generally try to avoid interpretations that do either.47 More significantly,
however, as we explained above, the common and ordinary usage of this phrase in both legal and
non-legal contexts provides a meaning that makes sense and that does not render any aspect of the
45
See, e.g., TGS-NOPEC, 340 S.W.3d at 432, 441.
46
See Tex. Gov’t Code § 552.137(a) (emphases added). In fact, section 552.137 references
“governmental body” eleven times. See id. § 552.137.
47
See, e.g., Columbia Med. Ctr., 271 S.W.3d at 256 (“The Court must not interpret the
statute in a manner that renders any part of the statute meaningless or superfluous.”); Alejos,
433 S.W.3d at 121.
13
provision useless or superfluous. Finally and also significantly, this interpretation satisfies the PIA’s
mandate that the public have “complete information about the affairs of government and the official
acts of public officials and employees,”48 even where, as here, those officials chose to conduct
official government business using private email addresses.
The City also suggests that we defer to the Attorney General’s interpretation of
this exclusion, citing Government Code section 311.023(b)49 and PIA section 552.011.50 The
City is correct that we generally give due consideration to Attorney General decisions, although they
are not binding, because the Legislature has directed the Attorney General to determine whether
records must be disclosed under the PIA.51 However, we only defer to agency interpretations that
do not contradict the plain language of the statute in question and, as explained above, the
interpretation offered here contradicts the exception’s plain language. Finally, the City Officials
maintain that releasing the email addresses here could expose certain City personnel to criminal
penalties under PIA section 552.352, which prohibits distribution of “information considered
48
Tex. Gov’t Code § 552.001(a) (emphasis added).
49
See id. 311.023(b) (Code Construction Act provision allowing courts to consider
administrative construction of statute).
50
See id. 552.011 (instructing Attorney General to maintain uniformity in “application,
operation, and interpretation” of PIA).
51
See Rainbow Grp. Ltd. v. Texas Emp’t Comm’n, 897 S.W.2d 946, 949 (Tex. App.—Austin
1995, writ denied) (“Although they are not binding on us, this Court gives due consideration to
Attorney General decisions, especially in cases involving the [PIA] under which the Attorney
General has a mandate to determine the applicability of exceptions to public disclosure.” (citing
Tex. Gov’t Code § 552.301 requiring Attorney General to render decisions regarding PIA)); see also
Abbott v. City of Corpus Christi, 109 S.W.3d 113, 121 (Tex. App.—Austin 2003, no pet.) (citing
Rainbow Group for same proposition).
14
confidential under the [PIA].”52 However, our holding that the member-of-the-public email-address
exception does not apply also means that the email addresses at issue here are not confidential
under that exception.53
The undisputed summary-judgment evidence before the district court established
that the email addresses redacted from the emails at issue here belong to the City Officials and that
those emails were communications with the City of Austin from the City Officials in their official
capacities. Based on our holding above that “member of the public” in PIA section 552.137 does
not include someone who is part of the governmental body with which the email at issue was
communicated, the City Officials are not “members of the public” as that phrase is used in PIA
section 552.137.54 Therefore, the City Officials’ email addresses are not shielded from disclosure
and must be disclosed as public information. Accordingly, The Austin Bulldog, and not the City,
is entitled to summary judgment.
We sustain The Austin Bulldog’s issue on appeal.
Conclusion
Having sustained The Austin Bulldog’s issue on appeal, we reverse the district court’s
summary judgment and render judgment in favor of The Austin Bulldog.
52
Tex. Gov’t Code § 552.352(a).
53
See id. § 552.137(a).
54
Because it is not before us on the facts of this case, we do not address whether a
member of a governmental body who communicates electronically with that entity outside of his
governmental capacity would be part of that entity for purposes of section 552.137.
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__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Pemberton and Bourland
Reversed and Rendered
Filed: April 8, 2016
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