Opinion
NO. 03-13-00838-CV
04-14-2016
The City of Carrollton, Appellant v. Ken Paxton, Attorney General of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT,
NO. D-1-GV-12-001307, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDINGMEMORANDUM OPINION
This cause, like The City of Carrollton v. Paxton, No. 03-13-00571-CV (Carrollton I), concerns a succession of Public Information Act (PIA) requests made to the City by Steven Eric Benzer. Four requests are at issue in this cause. Two of the requests sought information about police activities in Benzer's neighborhood relating to the pursuit and eventual arrest of criminal suspects having no evident connection to Benzer. A third request sought information relating to an incident in which one of Benzer's neighbors had been arrested on outstanding misdemeanor warrants. In the fourth request, Benzer sought information related to a City ordinance requiring registration of single-family rental properties, including a list of the addresses of all such properties located in the City. As in Carrollton I, the City sought to withhold a portion of the responsive information, requested rulings to that effect from the Attorney General, the Attorney General did not entirely agree, and litigation ensued in which the City and the Attorney General filed cross-motions for summary judgment. As in Carrollton I, the district court rendered judgment granting the Attorney General's motion, denying the City's motion, and awarding attorney's fees to the Attorney General. This appeal ensued.
2013 WL 1305196, at *1 (Tex. App.—Austin Mar. 31, 2016, no pet. h.).
See Tex. Att'y Gen. OR2013-09056; Tex. Att'y Gen. OR2012-18799.
See Tex. Att'y Gen. OR2012-13623.
See Tex. Att'y Gen. OR2012-13392.
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), .324(a)(2) (authorizing governmental body to file declaratory action seeking relief from compliance with attorney general's decision). Benzer did not exercise his right to intervene. See id. § 552.325(a) (allowing requestor to intervene in suit).
The City's principal issues and arguments here are effectively disposed of by our analysis in Carrollton I. In its first issue, the City urges that Benzer's history of violent crime, including violence against the neighbors with whom he seems to continually find antagonism, establishes the Cox Texas Newspapers physical-safety exception as to all of the information at issue. To the contrary, as in Carrollton I, the evidence ultimately falls short of raising a fact issue as to whether or why release of the specific information at issue would create a substantial risk of physical harm at the hands of Benzer or anyone else. Two of the requests concerned police pursuits and eventual arrests of individuals with whom Benzer had no apparent connection, while a third related to an arrest of a neighbor that had been prompted by a report made by Benzer himself and involved facts with which he would already be familiar. The list of single-family rental properties is potentially a closer call, but Cox Texas Newspaper's mandate for "detailed evidence or expert testimony" and not mere "vague assertions of risk" persuades us that we cannot, without more, reasonably infer the requisite "substantial risk" that Benzer will commit some sort of physical violence once the locations of those properties are revealed to him. We overrule the City's first issue.
See Texas Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 115-19 (Tex. 2011).
See Carrollton I, 2016 WL 1305196, at *10-11.
See id. at
For similar reasons, the City's assertion of the informer's privilege to bar release of the latter information is unavailing. See id. at
See Cox Tex. Newspapers, 343 S.W.3d at 118-19; see also Tex. Gov't Code § 552.223 (requiring that all requests be treated "uniformly without regard to the position or occupation of the requestor, the person on whose behalf the request is made, or the status of the individual as a member of the media"); A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995) ("[W]e may not consider the requesting party's purpose or use for the information." (citing Tex. Gov't Code § 552.222)).
Similarly, in the City's second issue, it insists that notes generated within the City's Computer-Aided Dispatch (CAD) system, which are responsive to two of the requests here, are categorically beyond the scope of "basic information about an arrested person, an arrest, or a crime" that must be disclosed under Subsection (c) of PIA Section 552.108. We rejected that same argument in Carrollton I, observing that the relevant inquiry is instead whether the substance or content of the information, as opposed merely to its form, qualifies under Subsection (c). And because the events made the subject of these two requests each concluded with one or more arrests and law-enforcement determinations that crimes had occurred, it follows that the CAD notes responsive to the requests may be subject to disclosure as necessary to provide the basic information required by Subsection (c). We overrule the City's second issue.
See Tex. Att'y Gen. OR2013-09056;Tex. Att'y Gen. OR2012-18799.
Tex. Gov't Code § 552.108(c).
See Carrollton I, 2016 WL 1305196, at *9.
See id.
The City's third and fourth issues plow some new ground beyond Carrollton I. Both of these issues concern documents responsive to Benzer's request for information relating to the arrest of a neighbor on outstanding warrants. In its third issue, the City urges that the Attorney General and district court erred in compelling disclosure of a document titled "warrant of arrest," signed by a Carrollton municipal-court judge, and an accompanying "affidavit of probable cause for issuance of arrest warrant." Emphasizing the documents' apparent judicial origins, the City urges that the documents are "information collected, assembled, or maintained by the judiciary" for which public access is "governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules" rather than the PIA. The City overlooks that the copies of the "warrant of arrest" and probable-cause affidavit at issue were undisputedly collected, assembled, or maintained by its police department as part of an investigative file, and there is no claim that the City or its police department did so "for the judiciary." Consequently, both of the documents are "public information" potentially subject to disclosure under the PIA. We overrule the City's third issue.
See Tex. Att'y Gen. OR2012-13623.
See Tex. Gov't Code § 552.0035(a). The City also insists that the "warrant for arrest" is more properly considered a capias. See Tex. Code Crim. Proc. art. 23.01 ("capias" is "a writ that is: (1) issued by a judge of the court having jurisdiction of a case after commitment or bail and before trial, or by a clerk at the direction of the judge; and (2) directed 'To any peace officer of the State of Texas', commanding the officer to arrest a person accused of an offense and bring the arrested person before that court immediately or on a day or at a term stated in the writ"). This argument evidently is calculated to avoid the implications of PIA Section 552.022(a)(17), which makes "information that is also contained in a public court record" a category of "super-public" information, see Tex. Gov't Code § 552.022(a)(17), and those of Code of Criminal Procedure article 15.26, which expressly declares, "The arrest warrant, and any affidavit presented to the magistrate in support of the issuance of the warrant, is public information." Tex. Code Crim. Proc. art. 15.26. In light of our analysis above, we need not address the merits of the City's proposed distinction between an "arrest warrant" and "capias" and whether it is material to determining whether the "warrant for arrest" and supporting affidavit here are "also contained in a public court record" within the meaning of PIA Section 552.022(a)(17). See 40 George E. Dix & Schmolesky, Texas Practice—Criminal Practice & Procedure § 11.5 (3d ed. 2011) ("There is probably no meaningful distinction between a capias and an arrest warrant." (citing Freeman v. State, 45 S.W.3d 655, 657-58 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) ("[W]hile in theory a capias is distinct from a warrant of arrest, and issues under different circumstances, in practice there tends to be some blurring."))).
See Tex. Gov't Code § 552.0035(a).
See id. § 552.002 ("public information" means, inter alia, "information that is . . . collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business . . . by a governmental body").
In its fourth issue, the City asserts that the Attorney General and district court erred in compelling disclosure of a booking photo or "mug shot" of Benzer's neighbor that had been taken following her arrest. Disclosure, the City insists, would infringe the neighbor's common-law right to privacy. Common-law privacy bars disclosure when information is shown to (1) contain highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) not be of "legitimate concern" to the public. While similar issues have sometimes vexed federal courts applying the Freedom of Information Act, the City relies singularly on a somewhat misplaced line of authorities holding that disclosure of detailed compilations of one's criminal history may implicate privacy concerns. While it is true that the detailed criminal histories addressed in such holdings have sometimes included mug shots, they fall short of supporting the City's proposition that disclosure of a mug shot, standing alone, categorically satisfies the common-law privacy standard. This is especially so under the circumstances here—the record indicates that the person depicted in the mug shot was ultimately convicted of one or more of the crimes whose allegations were the basis for the arrest. We overrule the City's fourth issue.
See Industrial Found. of the S. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976).
See World Publ'g Co. v. United States Dep't of Justice, 672 F.3d 825, 826-32 (10th Cir. 2012) (discussing circuit split as to whether detainees had privacy interest in booking photos that outweighed public interest in disclosure).
See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762-80 (1989); Tex. Att'y Gen. OR2009-12507 (citing Reporters Committee and finding that such a compilation is generally not of legitimate concern to the public); see also Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 187-88 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976)) (holding that constitutional right of access recognized in that case did not extend to "Personal History and Arrest Records," which contained, among other items, a mug shot of the arrested individual but had the primary purpose of listing chronologically all of the offenses for which the person has ever been arrested).
See Houston Chronicle, 531 S.W.2d at 179.
See Tex. Att'y Gen. OR1993-616, at 1-3 (concluding that mug shot taken of individual who was later convicted and incarcerated for the crime whose allegation was basis for arrest was not, in that context, "intimate or embarrassing" and did not implicate the concerns about the presumption of innocence emphasized in Houston Chronicle).
In its fifth and final issue, the City urges that the district court reversibly erred in awarding attorney's fees to the Attorney General. In a governmental body's suit seeking to withhold information under the PIA, such as the City prosecuted here, the Legislature has authorized an award of attorney's fees under Subsection (b) of PIA Section 552.323. In that provision, the Legislature has vested discretion in the trial court to award "costs of litigation and reasonable attorney's fees" to either a plaintiff or defendant who "substantially prevails." When exercising such discretion, the Legislature has further instructed, the trial court "shall consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith."
Tex. Gov't Code § 552.323(b).
Id.
The City does not dispute that the Attorney General "substantially prevailed" before the district court, and we have overruled its issues assailing that judgment. Nor does it contend that the amount of fees awarded was unreasonable or otherwise in error. The City's focus is instead to challenge, in substance, whether there was legally sufficient evidence that its withholding of information lacked a "reasonable basis in law" or that the City litigated the matter in bad faith. The premise of this challenge is that Subsection (b) of PIA Section 552.323, according to the City, required the Attorney General to prove either or both a lack of a reasonable basis or bad faith as a prerequisite to recovery. While other fee-shifting provisions within the PIA impose similar prerequisites to recovery—most notably, Subsection (a) of PIA Section 552.323—Subsection (b) does not. Instead, Subsection (b) leaves the ultimate decision whether to award attorney's fees to a "substantially prevailing" party to the trial court's discretion: "[T]he court may assess costs of litigation and reasonable attorney's fees incurred by a plaintiff or defendant who substantially prevails." And unlike Subsection (a), Subsection (b) requires only that the trial court, when "exercising its discretion under this subsection," "consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith."
The district court awarded $7,000 as reasonable and necessary fees at the district court level, plus an additional $3,500 conditioned on the Attorney General's success in this Court and another $7,875 conditioned on his success before the Texas Supreme Court.
See Tex. Gov't Code § 552.323(a) ("In an action brought under Section 332.321 [suit for mandamus to compel governmental body to disclose information] or 552.3215 [declaratory-judgment suit against governmental body], the court shall assess costs of litigation and reasonable attorney's fees incurred by a plaintiff who substantially prevails, except that the court may not assess those costs if the court finds that the governmental body acted in reasonable reliance on: (1) a judgment or order of a court applicable to the governmental body; (2) the published opinion of an appellate court; or (3) a written decision of the attorney general . . . .").
Id. § 552.323(b) (emphasis added).
Id. (emphasis added). --------
Under this statutory standard and on this record, the City's legal-sufficiency challenges, even if meritorious, would still fall short of demonstrating that the district court abused its discretion in its ultimate decision to award attorney's fees to the Attorney General as the substantially prevailing party. We overrule the City's fifth issue.
Having overruled all of the City's issues, we affirm the district court's judgment.
/s/_________
Bob Pemberton, Justice Before Chief Justice Rose and Justice Pemberton;
Former Chief Justice Jones not participating Affirmed Filed: April 14, 2016