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NO.
____________
_
TOMMY
ADKISSON,INDIVIDUALLY AND
OFFICIALLY
ON BEHALF
OF
BEXAR COUNTY,TEXAS, AS COUNTY
COMMISSIONERPCT.4
Plaintiffs
v.
GREG ABBOTT, ATTORNEYGENERAL
OF
TEXAS,
Defendant
§§§§§§§§§§§§§§
IN THE
DISTRICT
COURT
OF
TRAVIS COUNTY, TEXAS
JUDICIAL DISTRICTPLAINTIFFS'
ORIGINAL
PETITION
FOR
DECLARATORY JUDGMENT
TO
THE HONORABLE
JUDGE OF
SAID COURT:Now comes, Tommy Adkisson, individually, in his official capacity
as
Bexar CountyCommissioner Precinct
4,
and on behalf
of
Bexar County, Texas (hereinafter referred to
as
Plaintiffs) who bring this suit pursuant to Texas Civil Practices
&
Remedies Code Chapter 37and Chapter 552
of
the Texas Government Code, including
§
552.353(b), seeking declaratoryjudgment and injunction to prevent the application
of
the Texas Public Information Act (theAct) in connection with certain requests made to the Commissioner for non-publicinformation (including 0R2010-07537 and 0R2010-08701) and any future substantiallysimilar requests,
as
further described below:
1.
Plaintiffs seek an initial declaration that:
A)
The personal papers and effects
of
local government officials and localgovernment employees are not subject
to
"open records searches"
and compelleddisclosure to the Texas Attorney General when applying the Act because the affected
individuals
do
not fall within the term "governmental body"
as
that term is defined bythe Act.B) The personal papers and effects
of
local government officials and localgovernment employees do not meet the statutory definition
of
public information andtherefore, are not subj ect to the Act.
2.
In the alternative and in the event the Court somehow finds the scope
of
information atissue is "public information"
as
defined by the Act, and contingent upon the scope
of
theinitial declaration, Plaintiffs seek a declaration that such information referred to herein isexcepted from required disclosure under the Act.Factual Background for Declaratory
&
Injunctive Relief
3.
Josh Baugh, on behalf
of
the San Antonio Express-News, made a Public InformationAct demand for "all inbound and outbound e-mail correspondence" between theCommissioner and Terri Hall and "all inbound and outbound e-mail correspondence" betweenthe Commissioner and Isidro Martinez within a specified time period. (See Exhibit A -The
02117/2010
Request). The
02/1712010
request sought
all
"official capacity" information heldwithin the County and impermissibly sought all information not owned by the governmentalbody or accessible to the governmental body despite the definition
of
public information
as
defined by
§
552.002(a)
of
the Act.
4.
Applying the definition
of
public information in good faith, the Commissionerproduced all responsive information held by the governmental body or for the governmentalbody that the governmental body owned or held a right
of
access to and sought the assistance
of
the District Attorney to obtain an opinion
of
the Texas Attorney General finding theremaining information sought was not subject to the Act. The Bexar County District
Plaintiff's Original Petition for Declaratory Judgment Page 2
Attorney, correctly applying the law and procedural aspects
of
the Act, requested an opinion
of
the Texas Attorney General that the remaining information sought
but
undisclosed was notsubject to the Act. (See Exhibit B -
03110/2010
15
Day Brief).
5.
The Texas Attorney General, ignoring the clear and unambiguous statutory definitionsprovided by the legislature and the well reasoned legal briefing by the Bexar County DistrictAttorney's Office, impermissibly re-wrote and unconstitutionally applied Texas law by notonly expanding the definition
of
a "governmental body" to include all local officials and all
"
local employees, but expanded the definition
of
"public information" beyond constitutionallimits. Compare the Texas Attorney General's own recital
of
§
552.002(a) from his opinion,with his self-pronounced revision
of
the very same statute in the very same opinion,
as
provided below:
Legislative Definition
of
§552.002(a):Section 552.002(a) provides
that
"public information" consists
ofinformation
that
is
collected, assembled,
or
maintained
under
a law
or
ordinance
or
in
connection with
the
transaction
of
official business: (1) bya governmental body;
or
(2) for a governmental
body
and
the
governmental body owns
the
information
or
has a
right
of
access to it.
Attorney
General's
Definition of §552.002(a)
Information
is within
the
scope
of
the
Act
if
it
relates
to
the
officialbusiness
of
a governmental body
and
is maintained by a
public
official
or
employee
of the
governmental body.
(See Exhibit C -
05124/2010
0R2010-07537). This impermissible and wholesale revision
of
the legislature's definition must be corrected by order
of
the Court. Upon making his self-proclaimed amendment to Texas law, the Attorney General went on to admonish theCommissioner with the threat
of
possible criminal sanctions
if
he did not comply with theAttorney General's opinion
of
what the Attorney General believes the
law
should
be.
Id.
Plaintiff's Original Petition for Declaratory JudgmentPage 3
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