




gilbreath                                                           



 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-92-024-CV



TEXAS DEPARTMENT OF PUBLIC SAFETY,

	APPELLANT

vs.



JAMES GILBREATH,

	APPELLEE


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 91-6202, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING

 


	The Texas Department of Public Safety ("the DPS") appeals the judgment of the
trial court issuing a writ of mandamus ordering the DPS to produce certain information James
Gilbreath requested under the authority of the Texas Open Records Act, Tex. Rev. Civ. Stat.
Ann. art. 6252-17a (West Supp. 1992) (1) ("the Act").  We will affirm the judgment of the trial
court.
STATUTORY AND PROCEDURAL BACKGROUND
	This dispute requires this Court to interpret sections 3(a)(11) and 8(a) of the Act,
which provide as follows:
Sec. 3. (a) All information collected, assembled, or maintained by or for
governmental bodies . . . in connection with the transaction of official business is
public information and available to the public during normal business hours of any
governmental body, with the following exceptions only:

* * *

(11) inter-agency or intra-agency memorandums or letters which would not be
available by law to a party in litigation with the agency;
* * *

Sec. 8. (a) If a governmental body refuses to request an attorney general's decision
as provided in this Act, or to supply public information or information which the
attorney general has determined to be a public record, the person requesting the
information or the attorney general may seek a writ of mandamus compelling the
governmental body to make the information available for public inspection.

Art. 6252-17a, §§ 3(a)(11), 8(a).
	The facts are not in dispute.  On February 5, 1991, pursuant to the Act, James
Gilbreath requested information from the Texas Department of Public Safety that it relied upon
in not selecting Gilbreath for the position of Texas Ranger in November 1989 and November
1990.  Gilbreath requested disclosure of all documents pertaining to his application, testing,
interview and consideration for selection, including the subjective, narrative evaluations made
specifically as a result of Gilbreath's oral interview.  Through a letter dated February 15, 1991,
the DPS provided a portion of the requested information, but told Gilbreath that it was
withholding certain other information until it received an opinion from the Texas Attorney
General's Office regarding whether the information was subject to disclosure.
	On March 26, 1991, the attorney general issued an informal letter ruling, Texas
Att'y Gen. OR91-149 (1991), advising the DPS that background evaluations and subjective
evaluations of an applicant's performance before an interview board were exempt from disclosure
under section 3(a)(11) ("Exemption 11") of the Act, and that the test questions used by the DPS
in its evaluation of Texas Ranger candidates were exempt from disclosure under section 3(a)(22). (2) 
Accordingly, the DPS declined to release the remainder of the requested information.
	Dissatisfied with the attorney general's determination, on May 2, 1991, Gilbreath
sought a writ of mandamus pursuant to section 8(a) of the Act to compel disclosure of the
withheld information.  Gilbreath sought the subjective evaluations that were completed during his
oral interviews and any background evaluations that the DPS relied upon during the interviews. 
Gilbreath also sought recovery of his costs and reasonable attorney's fees.
	The DPS opposed issuance of the writ.  It argued that the trial court lacked
jurisdiction over the dispute because Gilbreath had no statutory authority to file suit. 
Furthermore, the DPS asserted that mandamus would be an improper remedy because it had
neither violated a clear legal duty to release the information nor abused its discretion in refusing
to supply the information.  The case was tried before the trial court on stipulated facts. 
Significantly, stipulated fact seven stated:  "[i]f the Department of Public Safety were involved
in civil litigation over James Gilbreath's application, the information withheld would be available
through civil discovery."  The parties also stipulated to the amount of reasonable attorney's fees
recoverable if Gilbreath prevailed on his petition.
	After reviewing the entire record, the trial court found that Gilbreath had exhausted
his administrative remedies under the Act and that the DPS had failed to supply public
information.  The court found this action to be a violation of the agency's clear duty to produce
the information pursuant to the Act.  Therefore, the trial court issued a writ of mandamus ordering
the DPS to disclose the withheld information and to pay Gilbreath's reasonable attorney's fees. 
The DPS appeals the order of the trial court.
DISCUSSION
	The DPS brings three points of error.  First, it challenges the jurisdiction of the
trial court and asserts the trial court had no authority to issue a writ of mandamus in this dispute. 
Second, the DPS contends that, even if the trial court had authority to issue the writ, mandamus
was not proper because the agency did not violate a "clear duty" imposed by law or abuse its
discretion in relying on the attorney general's open records decision.  Third, it maintains that the
trial court's interpretation of Exemption 11 is flawed.
	In its first point of error, the DPS challenges the trial court's jurisdiction and claims
the Act does not authorize mandamus when the attorney general has ruled the information is not
a public record.  The DPS contends that once the attorney general makes a decision as to the
classification of information under the Act, that decision may not be challenged in a court of law. 
We disagree.
	Section 8(a) confers upon the trial court authority to issue a writ of mandamus in
three circumstances: where a governmental body (1) refuses to request an attorney general's
decision as to whether information is public record, (2) refuses to supply public information, or
(3) refuses to supply information that the attorney general has determined to be a public record. 
Art. 6252-17a, § 8(a).  The fact that the attorney general determined this information was not a
public record did not preclude Gilbreath from seeking a trial court's determination as to whether
the information sought was public information within the meaning of section 3(a).  Although it
may appear that the terms "public information" and "public record" are interchangeable, they have
distinct meanings.  City of Houston v. Houston Chronicle Publishing Co., 673 S.W.2d 316, 322-23 (Tex. App.--Houston [1st Dist.] 1984, no writ).
	A person seeking disclosure of information usually begins the process by requesting
the information from the governmental body directly.  If it is public information or information
that the attorney general has previously determined to be a public record, the governmental body
must disclose it.  If the agency refuses to do so, the person requesting the information may initiate
a mandamus proceeding to compel disclosure.
	Where there is a dispute as to the nature of the information, the person seeking
disclosure has two alternatives.  He may either compel the governmental body to request an open
records decision from the attorney general or he may simply seek disclosure of the information
that he believes is public information through a mandamus proceeding in a court of law.  If the
latter form of relief is sought, the trial court determines whether the information requested is
public information subject to disclosure under the Act.  As we read the statute, there is no
requirement that the attorney general issue an open records decision before a person may seek a
mandamus to compel the disclosure of public information.
	If the agency has requested an open records decision (on its own initiative or
because of a mandamus proceeding) and the attorney general decides that the information is a
public record, the agency must disclose the information.  However, if the attorney general decides
that the information is not a public record, the person seeking such information is not precluded
from petitioning the court for a writ of mandamus.  In such a case, the person may seek a judicial
proceeding to determine whether the information is subject to disclosure.  See, e.g., Houston
Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th
Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976).  That was the situation
in which Gilbreath found himself, and thus it was proper for him to petition for a writ of
mandamus.
	Having determined that Gilbreath's mandamus proceeding is proper, we are asked
to address the argument that Gilbreath's suit constitutes an appeal of an adverse attorney general
open records decision, and that such an appeal is prohibited.  The DPS maintains that section 8(a)
does not authorize a private citizen to file suit to compel disclosure of information that the
attorney general has determined is not a public record.  We disagree.  Under such an
interpretation of the Act, an adverse attorney general's decision would never be subject to judicial
review.  We believe the clear legislative intent of the Act reflects a contrary view.  Just as the
refusal of the attorney general to render a decision under the Act is subject to review by the
courts, Houston Chronicle Publishing Co. v. Mattox, 767 S.W.2d 695, 698 (Tex. 1989, orig.
proceeding), once the attorney general renders a decision under the Act, that decision is also
subject to judicial review.
	Gilbreath sought mandamus to compel the DPS to disclose information he
considered to be public within the meaning of the Act.  Because he has the right to do this
pursuant to section 8(a), we overrule point of error one.
	In its third point of error, the DPS contends the trial court erred in its interpretation
of the Act, specifically Exemption 11.  The DPS is of the opinion that Exemption 11 is
independent of the rules of civil discovery and although a record might be discoverable in civil
litigation it might not be subject to disclosure under the Act.  Consequently, the DPS stipulated
that if it was in litigation with Gilbreath the information would be discoverable.
	Section 3(a) provides that all information in the possession of a governmental
agency is public information unless specifically exempted from disclosure.  As such, when a
person requests information from a governmental body, it must supply the information unless one
of the twenty-three specific exemptions provided in section 3(a) exempts the information from
disclosure.  Art. 6252-17a, § 3(a).
	In its informal letter ruling to the DPS, the attorney general's office stated that it
considered the information at issue to be protected from disclosure solely under Exemption 11. 
While such opinions are to be given great weight, they are not binding upon a court of law. 
Houston Indep. Sch. Dist. v. Houston Chronicle Publishing Co., 798 S.W.2d 580, 588 (Tex.
App.--Houston [1st Dist.] 1990, writ denied).
	Exemption 11 exempts from public disclosure "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party in litigation with the
agency."  Art. 6252-17a, § 3(a)(11).  This exemption is intended to protect advice and opinions
on policy matters and to encourage frank and open discussion within the agency in connection
with its decision-making processes.  Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex.
Civ. App.--San Antonio 1974, writ ref'd n.r.e.).  However, the exemption is not an absolute
shield.  Exemption 11 is to be construed in light of the Act's mandate that information regarding
the affairs of government and the official acts of those who serve the public be freely available
to all.  Art. 6252-17a, § 1; Austin, 630 S.W.2d at 394.
	Exemption 11 is modeled after section 552(b)(5) ("Exemption 5") of the federal
Freedom of Information Act, which protects "inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the
agency."  5 U.S.C. § 552(b)(5) (1988). (3)  Exemption 5 incorporates what is referred to in federal
civil discovery practice as the "deliberative process privilege."  See Dow Jones & Co. v.
Department of Justice, 917 F.2d 571, 573 (D.C. Cir. 1990).  The attorney general has
consistently interpreted Exemption 11 of the Act to parallel federal Exemption 5, Op. Tex. Att'y
Gen. No. H-436 (1974), and the DPS asks this Court to interpret Exemption 11 in the same
manner.  When the legislature adopts a statute from another jurisdiction it is presumed that the
legislature intended to adopt the settled construction given to the statute by the courts of that
jurisdiction.  State v. Wiess, 171 S.W.2d 848 (Tex. 1943).  That presumption also applies when
the state adopts a federal statute.  Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 72 (Tex.
App.--Austin 1990, no writ).
	Federal Exemption 5 contemplates that public access to inter-agency and intra-agency memoranda and letters will be governed by "the same flexible, common-sense approach"
that governs discovery of such documents by private parties involved in litigation with
governmental bodies.  Environmental Protection Agency v. Mink, 410 U.S. 73, 85-86 (1973). 
The United States Supreme Court has described the interrelationship between the federal
exemption and the civil discovery process as follows:

Since virtually any document not privileged may be discovered by the appropriate
litigant, if it is relevant to his litigation, and since the [Freedom of Information]
Act clearly intended to give any member of the public as much right to disclosure
as one with a special interest therein [citations omitted], it is reasonable to construe
Exemption 5 to exempt those documents, and only those documents, normally
privileged in the civil discovery context.


National Labor Relations Bd. v. Sears Roebuck, Inc., 421 U.S. 132, 149 (1979) (emphasis
added).  However, over the years various federal courts, including the United States Supreme
Court, have engrafted new exceptions upon Exemption 5.  Through these decisions, the federal
courts have limited the scope of the Freedom of Information Act. (4)  We decline to narrow the
scope of the Texas Open Records Act.  Exemption 11 exempts those documents, and only those
documents, normally privileged in the civil discovery context.  The language of Exemption 11 is
clear and unambiguous, and we will not read into the statute language that is not textually present.
	The parties stipulated that, if they were in litigation, the information at issue would
be discoverable.  By so stipulating, the DPS has admitted that there is no privilege, including a
deliberative process privilege, which protects the information from discovery.  In other words,
these inter-agency or intra-agency memorandums or letters would be available by law to a party
in litigation with the agency.  Thus, Exemption 11 does not apply, and the information is "public
information" as a matter of law.  Accordingly, it is subject to disclosure.  The policy behind the
Act, stated twice therein, that the statute should be "liberally construed" in favor of disclosure
supports this conclusion.  Art. 6252-17a, §§ 1, 14(d).  Accordingly, we overrule point of error
three.
	Finally, in its second point of error, the DPS maintains that even if the trial court
has the authority to issue a writ of mandamus, it was issued improperly in this case.  The DPS
contends that it has neither violated a "clear duty" imposed by law nor abused its discretion in
relying on and following the attorney general's open records decision.  We think this argument
misses the mark.  The DPS argues that Gilbreath must meet the requirements for a common law
writ of mandamus.  In a common law cause of action, there are three requisites to a mandamus: 
a legal duty to perform a non-discretionary act, a demand for performance of the act, and a refusal
to perform.  Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979, orig. proceeding).  However,
section 8(a) creates a statutory writ of mandamus under which a requesting party need only show
that the governmental body has not complied with the Act in order to obtain mandamus.  Rules
applicable to common law writs of mandamus may be helpful to determine whether the agency
has complied with the statute, but they are not dispositive.  Section 8 must be viewed in light of
the legislative purpose and the statute's overall scheme.  Industrial Found. of the South v. Texas
Indus. Accident Bd., 540 S.W.2d 668, 674 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). 
While the equities of an ordinary mandamus case are not at issue in an open records mandamus
action, the trial court may exercise equitable discretion to issue a writ of mandamus where
mandamus would further the overall scheme of the Act.  Under the Act, the DPS is required to
supply public information to any person who may request such information.  The trial court
determined that the requested documents were public information under the Act.  The failure of
a governmental body to provide public information is a clear violation of a duty imposed by the
Act and, therefore, statutory mandamus is an appropriate remedy.  City of Houston, 673 S.W.2d
at 320.  We overrule point of error two.
	The judgment of the trial court is affirmed in all respects.


  Mack Kidd, Justice
[Before Chief Justice Carroll, Justices Jones and Kidd]
Affirmed
Filed:  November 25, 1992
[Publish]
1.        All statutory references are to Tex. Rev. Civ. Stat. Ann. art. 6252-17a (West Supp.
1992).
2.        The test questions were not sought by mandamus, and thus the DPS's nondisclosure of
these questions is not an issue on appeal.
3.        As originally adopted, state Exemption 11 protected "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than one in
litigation with the agency."  Acts 1973, 63rd Leg., ch. 424, p. 1112.  In 1989, the Texas
Legislature revised the exemption to its present form by eliminating the phrase "other than
one."
4.        Currently under the federal Freedom of Information Act, if a document would be
"routinely" or "normally" discoverable upon a showing of relevance, it is not protected from
disclosure by federal Exemption 5.  United States Dep't of Justice v. Julian, 486 U.S. 1, 12
(1988).
