‘The Litigation Exception:’ A strange creature of darkness in government

Section 552.103 of the Texas Public Information Act—the “litigation exception”—is a uniquely strange exception to “prompt” disclosure of public information. Generally, it permits a governmental body to withhold information “relating to litigation of a civil or criminal nature” in which the government is, or may become, a party, viewed as of the date a requestor asks for the information. Its sole stated purpose is to keep parties who may sue the government or might be a criminal defendant from being able to use the TPIA to get records instead of using lawsuit discovery procedures to obtain records. But it blocks disclosure using the TPIA to the public, not just to the litigants.

This seems overly protective of the government’s interest, if not plain picky. Records subject only to the litigation exception will eventually be disclosed to litigation parties, and then can be disclosed to the public. What justifies such a delay to public disclosure?
When we unmask this exception and see it for what it really does, it is truly an ugly creature of darkness in government. It shows up to delay public disclosure in the exact circumstances where public interest is heightened—when there is a death of a person in custody of the police; when there is suspicion that government employees or officials have done something so bad, they may get sued for it. 
Such an ugly creature belongs nowhere in an Act that declares its purpose is to keep the People “informed so that they may retain control over the instruments they have created” and that “government is the servant and not the master of the people” and that the People are entitled “at all times to complete information about the affairs of government and the official acts of public officials and employees.”
The litigation exception does not make the information “confidential.” It just makes the information “not subject to mandatory disclosure.” Ironically, TPIA section 552.007 specifically authorizes the government to disclose such information ... if they want to. So, if the government thinks the litigation-related information is helpful to their image, they can disclose it, but if it is embarrassing to the government, they can hide behind that ugly creature.
If there is no threat of litigation made or reasonably anticipated when a public information request (PIR) is made, then the litigation exception will not apply and the information cannot be withheld on that basis. 
Even if notice of a lawsuit occurs shortly after the PIR is made, the litigation exception will not apply because its applicability is determined at the time the PIR is received by the governmental body. 
This is where a real conflict can occur between the interests of news reporters trying to timely inform the public and attorneys representing potential claimants against the government. If an attorney makes a threat of litigation before or at the time of submitting a PIR, that threat is going to prevent disclosure of the information to the attorney as well as to a news reporter who files a subsequent PIR for that information. So, the lesson for reporters is that as soon as you hear about an issue with “future litigation” likely, file your PIR for those records right away. An astute attorney who is trying to get information about a client’s potential claim would be well-advised to not even hint that litigation might occur. The mere fact that it is an attorney who makes a PIR does not give the government an excuse to claim the litigation exception.
The litigation exception no longer applies once the information is provided to the parties in litigation under the lawsuit discovery rules. The problem is that disclosure through litigation discovery can take years, and reporters may not even know of the party disclosure since no public record of discovery is readily available. A clever reporter might ask an agency being sued for a copy of records the agency discloses in litigation discovery.
Another wrinkle on this ugly creature is that if litigation doesn’t actually occur but was just “reasonably anticipated” when a PIR was made, then the information can still be withheld until the statute of limitations for the claims has run but, more likely, forever until the records are destroyed under records retention rules.
 Bottom line: We must assume the Legislature is not going to repeal the litigation exception – although they should. So, to avoid this creature of darkness, get your PIR filed early before any threat of litigation is made.

By Bill Aleshire, AleshireLAW PC, Austin

1 Citations to case law and administrative rulings supporting the contents of this article are available upon request to the author, Bill Aleshire, at Bill@AleshireLaw.com or 512 320-9155.