The Golden Hammer fights back, files brief in SJRA’s appeal to avoid public disclosure of downstream flooding documents

Conservative Republican activist Ginger Russell held up “The Golden Hammer” at the Montgomery County Commissioners Courtroom on June 26, 2108, with Dale Fessenden (left) and Terrence Boggs (center) following the festivities.

Publisher’s Note: The Golden Hammer requested some important documents from the San Jacinto River Authority (SJRA). The SJRA refused to provide the documents. This newspaper’s Publisher filed suit against the SJRA in 2017. The case went to trial in February, 2019. The trial judge, the Honorable Kristin Bays of the 284th District Court, ordered SJRA to produce the documents. SJRA appealed to the Beaumont Court of Appeals. What follows is an excerpt from The Golden Hammer’s brief, which the newspaper is filing in the Court of Appeals today.

RR refers to the Court Reporter’s Record, or transcript. CR refers to the Clerk’s Record.

Statement of Facts

 Yollick’s Public Information Request to SJRA

On September 8, 2017, SJRA issued a press release in which SJRA referred to “a carefully prepared engineering plan that, among other things actually has the effect of reducing downstream peak flow as water passes through the lake [Lake Conroe] from the San Jacinto River.” 2 RR Exhibit 1.

On September 27, 2017, Yollick submitted a request under the Texas Public Information Act, Chapter 552 of the Texas Government Code, for:

  1. The “carefully prepared engineering plan” to which SJRA’s September 8 press release referred;
  2. All engineering plans since October 1, 1994, SJRA had prepared or had prepared for it for the operation of the Lake Conroe Dam with respect to mitigation or reduction of downstream peak flows;
  3. All flood control plans SJRA has developed Since August 28, 2007.

2 RR Exhibit 2; 1 RR 14.

When SJRA responded to Yollick’s September 27 request for public information on October 11, 2017, SJRA advised Yollick that “the only information that is responsive to your Request is contained in the Authority’s Emergency Action Plan for the Lake Conroe Dam and the related 2017 update to the Gate Operation Policy for the Lake Conroe Dam.” 2 RR Exhibit 3; 1 RR 14-15.

SJRA then said:

“The Authority has requested a decision from the Attorney General as to whether all or part of the Emergency Action Plan (i) must be withheld as confidential information under the Texas Homeland Security Act, and/or (ii) may be withheld due to pending litigation.”

2 RR Exhibit 3; 1 RR 10.

Nowhere in SJRA’s October 11, 2017, response to Yollick’s request did SJRA aver that the Attorney General had already made a determination with respect to the Emergency Action Plan and 2017 update thereto (together the “EAP”).

SJRA never asked for an Attorney General determination with respect to Yollick’s request, but SJRA did request such a determination on October 4 with respect to another request by someone named Brad Laney. 2 RR Exhibit 3.1; 1 RR 21-22, 29.

By failing to make a request for an opinion with respect to Yollick’s Public Information Act request, SJRA prevented Yollick from being able to submit public comments to the Texas Attorney General which is one of his rights as a citizen under the statute. 1 RR 32.

SJRA told Yollick in SJRA’s October 11 letter, “Pending a decision from the Attorney General, the responsive information is being withheld.” 2 RR 3.

There never was a ruling by the Texas Attorney General up through the date of October 11, 2017, with respect to the two exceptions SJRA claim to the release of the EAP to Yollick. 1 RR 21, 31.

April 19, 2017, letter from Attorney General Paxton to SJRA

At the trial of this dispute, SJRA tried to make grist of an April 19, 2017, letter the Texas Attorney General had sent in which the Attorney General determined some “dam release protocol” was subject to exception from public disclosure under the Texas Homeland Security Act exception to Section 552.101 of the Texas Government Code. 1 RR 42-43; 2 RR 3.1.

The trial court noted that the April 17, 2017, letter doesn’t relate to the EAP at all, however. 1 RR 43, 80-81. The April 17, 2017, letter made clear also that “…we note the authority [SJRA] has submitted information beyond the request dam release protocols. This information is not responsive to the present request. This ruling does not address the public availability of this information…” 2 RR 3.1

Litigation against SJRA and why Yollick wanted the SJRA information

Yollick is not a party nor an attorney to any pending litigation against SJRA other than this mandamus action. 1 RR 15.

SJRA made a filing in a lawsuit in which it is involved admitting that neither Lake Conroe nor its dam were designed to function as a flood control facility but simply exist to maintain a level of water so as to supply SJRA’s customers with a previously contracted amount of water. 2 RR Exhibit 7 (page 9 thereof); 1 RR 44, 45

Yollick testified at trial that:

“…my concern is that the Authority does not engage in flood control even though they have a statutory duty to do so, and so what it has done is it has now put an onus on the Montgomery County government to provide flood control and my whole deal as I said in the petition is I want less government spending. I believe you guys [SJRA] have the financial resources and you have the statutory duty to provide flood control. That is what I am trying to find out about, and so when you-all sent out the – – when you-all issued this press release saying that you had some sort of plans with respect to mitigation of downstream flow, that is why I wanted to see the documents.”

1 RR 43-44.

Lawsuit

Yollick filed the lawsuit in the trial court on October 16, 2017. CR _____.

The case proceeded to trial on February 8, 2019. 1 RR 1.

Trial

         Yollick made clear during the trial that he “wasn’t interested in the technical details of the dam. I wanted to know what the – – or get the information the Authority had with respect to the downstream flow from the dam.” 1 RR 16, 48.

Yollick testified in the trial as a fact witness and as an expert on litigation matters. Yollick specifically opined that, based upon Justice Michael Massengale’s opinion in the Houston Court of Appeals, the EAP could not be the subject of or relate to the pending flood litigation arising out of the Harvey storm, because “the sole remaining issue in that litigation is whether or not during the Harvey storm the Authority essentially intentionally meant to take those homes by flooding or some other use of water that went downstream from the Lake Conroe Dam; and since the EAP actually existed prior to the Harvey storm and before we even knew that there would be a Harvey storm, the portions of the EAP that I [Yollick] am seeking which are just merely the downstream portions and not anything to do with the technical operation of the dam, they could not even be relevant to the litigation that is pending in Harris County…” 1 RR 18-21, 24.

James Napolitano, a former employee of the United States Department of Homeland Security, testified at the trial. 1 RR 50-60. Napolitano testified that matters related to the downstream impact of dam operations are not matters of “critical infrastructure” but merely matters showing the “result of what would happen if the critical infrastructure had been attacked.” 1 RR 60.

Trial court’s ruling

The trial court remarked during the trial “552.326 [of the Texas Government Code]. You-all didn’t get an opinion from the attorney general nor did you request one related to Mr. Yollick’s precise request. That is a waiver situation; and coupled with Plaintiff’s Exhibit 1 [the September 8 press release] I have a real hard time understanding why SJRA can talk about this carefully…prepared engineering plan that has this impact and then now is taking the position that it is dangerous to release that information. It is your press release.” 1 RR 78.

The trial court ordered an in camerainspection of the EAP on February 13, 2019. CR ______.

After the trial court conducted an in camerainspection of the EAP, the trial court issued a writ of mandamus and order SJRA to produce a redacted version of the EAP to Yollick, by Final Judgment dated February 22, 2019.

In the Final Judgment, the trial court made the following findings, among others:

  • “…SJRA relied upon a prior Attorney General opinion from April 2017 related to a different request from a different requestor not specifically mentioning the EAP and on from a different, earlier request of September 20, 2017 for an Attorney General opinion based upon a request from Bradford T. Laney for which the Attorney General’s Office had not yet issued an opinion.” CR _____.
  • “…because SJRA did not comply with the statutory requirements to withhold public information )TEX. GOV’T CODE552.301(b)) as to Eric Yollick’s request, “the information [Eric Yollick] (sic) requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information.” CR _______.
  • “Yollick is not involved in any such lawsuit [involving Harvey] in any capacity.” CR _________.
  • “The requested information is ‘not information relating to litigation of a civil or criminal nature’ in that the litigation does not concern the EAP, nor could it insofar as both parts of the EAP were created before Hurricane Harvey occurred.” CR _________.

SJRA initiated this appeal after the trial court’s ruling by filing a notice of appeal. CR _________.

Summary of the Argument

If a governmental body does not request an attorney general decision as provided by Texas Government Code Section 552.301 and provide the requestor with the information required by Sections 552.301 (d) and (e-1), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Tex. Gov’t Code Ann.  §552.302 (Vernon 2019).

SJRA failed to request an attorney general decision about Yollick’s Public Information Act request. SJRA had not previously received an opinion from the Texas Attorney General that the EAP was excepted from disclosure. Therefore, SJRA’s EAP is presumed to be subject to required public disclosure and must be released. Id.

Yollick made clear at trial that he didn’t seek any technical information about the Lake Conroe Dam but only sought the information concerning downstream flow impacts. 1 RR 16, 48.

Since SJRA waived the exceptions to disclosure, neither the trial court nor the Court of Appeals would need to reach the issue of whether either of the two exceptions apply. Tex. Gov’t Code Ann.  §552.302 (Vernon 2019). Nevertheless, neither the “litigation” exception nor the “homeland security” exceptions apply to Yollick’s modified request.

Argument and Authorities

Reply Issue Number One 

         By failing to seek an Attorney General opinion about Yollick’s Texas Public Information Act request, SJRA waived exceptions thereto. 

Reply Issue Number Two

         The “homeland security” exception under the Texas Public Information Act does not apply to Yollick’s request.

Reply Issue Number Three

         The “litigation” exception under the Texas Public Information Act does not apply to Yollick’s request.

Reply Issue Number Four

         The “TCEQ” exception under the Texas Public Information Act does not apply to Yollick’s request, because SJRA did not assert it in response to Yollick’s request.

Argument

Reply Issue Number One

         By failing to seek an Attorney General opinion about Yollick’s Texas Public Information Act request, SJRA waived exceptions thereto.

A governmental body that receives a written request for information that it wishes to withhold from public disclosure, and that it considers to be within one of the exceptions under Subchapter C of the Texas Public Information Act, must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. Tex. Gov’t Code Ann.  §552.301(a) (Vernon 2019).

On September 27, 2017, Yollick submitted his request under the Texas Public Information Act, Chapter 552 of the Texas Government Code. 2 RR Exhibit 2; 1 RR 14.

When SJRA responded to Yollick’s September 27 request for public information on October 11, 2017, SJRA advised Yollick that “the only information that is responsive to your Request is contained in the Authority’s Emergency Action Plan for the Lake Conroe Dam and the related 2017 update to the Gate Operation Policy for the Lake Conroe Dam.” 2 RR Exhibit 3; 1 RR 14-15.

SJRA then said:

“The Authority has requested a decision from the Attorney General as to whether all or part of the Emergency Action Plan (i) must be withheld as confidential information under the Texas Homeland Security Act, and/or (ii) may be withheld due to pending litigation.”

2 RR Exhibit 3; 1 RR 10.

Nowhere in SJRA’s October 11, 2017, response to Yollick’s request did SJRA aver that the Attorney General had already made a determination with respect to the Emergency Action Plan and 2017 update thereto (together the “EAP”).

SJRA never asked for an Attorney General determination with respect to Yollick’s request, but SJRA did request such a determination on October 4 with respect to another request by someone named Brad Laney. 2 RR Exhibit 3.1; 1 RR 21-22, 29.

If a governmental body does not request an attorney general decision as provided by Section 552.301 and provide the requestor with the information required by Sections 552.301 (d) and (e-1), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Id. §552.302.

SJRA clearly didn’t request an attorney general decision as provided by Section 552.301 of the Texas Government Code. 2 RR Exhibit 3.1; 1 RR 21-22, 29.

If a governmental body does not request an attorney general decision as provided by Texas Government Code Section 552.301 and provide the requestor with the information required by Sections 552.301 (d) and (e-1), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Tex. Gov’t Code Ann.  §552.302 (Vernon 2019). As a result of SJRA’s failure to request an opinion from the Texas Attorney General regarding Yollick’s request for public information, and since there had not previously been an Attorney General determination that the EAP was excepted from public disclosure, the EAP is presumed to be subject to required public disclosure and must be released. Id.

Reply Issue Number Two

         The “homeland security” exception under the Texas Public Information Act does not apply to Yollick’s request.

Technical details of particular vulnerabilities of critical infrastructure to acts of terrorism are excepted from public disclosure and confidential under the Texas Public Information Act. Tex. Gov’t Code Ann. §§ 418.181, 552.101 (Vernon 2019).

         Yollick made clear during the trial that he “wasn’t interested in the technical details of the dam. I wanted to know what the – – or get the information the Authority had with respect to the downstream flow from the dam.” 1 RR 16, 48.

James Napolitano, a former employee of the United States Department of Homeland Security, testified that matters related to the downstream impact of dam operations are not matters of “critical infrastructure” but merely matters showing the “result of what would happen if the critical infrastructure had been attacked.” 1 RR 50-60.

SJRA’s entire argument under the “homeland security” exception rests upon technical details of the Lake Conroe Dam itself, precisely the information which Yollick has not sought. After the trial court’s in camerainspection, the trial court found that there are many aspects of the EAP which do nothave anything to do with such technical details but instead pertain to the downstream flow and downstream impact information which Yollick sought.

Reply Issue Number Three

         The “litigation” exception under the Texas Public Information Act does not apply to Yollick’s request.

Yollick is not a party nor an attorney to any pending litigation against SJRA other than this mandamus action. 1 RR 15.

Yollick testified in the trial as an expert on litigation matters, which such testimony SJRA did not dispute. Yollick specifically opined that, based upon Justice Michael Massengale’s opinion in the Houston Court of Appeals, the EAP could not be the subject of or relate to the pending flood litigation arising out of the Harvey storm, because “the sole remaining issue in that litigation is whether or not during the Harvey storm the Authority essentially intentionally meant to take those homes by flooding or some other use of water that went downstream from the Lake Conroe Dam; and since the EAP actually existed prior to the Harvey storm and before we even knew that there would be a Harvey storm, the portions of the EAP that I [Yollick] am seeking which are just merely the downstream portions and not anything to do with the technical operation of the dam, they could not even be relevant to the litigation that is pending in Harris County…” 1 RR 18-21, 24.

Information is excepted from the requirements of disclosure, if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person’s office or employment, is or may be a party. Tex. Gov’t Code Ann. § 552.103(a) (Vernon 2019).

Even if SJRA had not waived all claimed exceptions to disclosure, SJRA has failed to show how two documents, the EAP, which existed prior to the Harvey storm could “relate” to litigation involving the Harvey storm. The only testimony adduced at trial and the trial court’s findings both concluded that the pending litigation does not concern the EAP nor could it. CR _______; 1 RR 18-21, 24.

Reply Issue Number Four 

         The “TCEQ” exception under the Texas Public Information Act does not apply to Yollick’s request, because SJRA did not assert it in response to Yollick’s request. 

         SJRA never claimed the “TCEQ” exception in response to Yollick’s request. 2 RR Exhibit 3. SJRA could have attempted to claim a “TCEQ” exception under the confidentiality provision of Section 552.101. Tex. Gov’t Code Ann. § 552.101 (Vernon 2019).

Clearly, the EAP falls within the broad definition of “public information” under the Texas Public Information Act. Id. § 552.002(a).

The governmental body must ask for the attorney general’s decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request. Id§ 552.301(b). SJRA failed to state the “TCEQ” exception at all and never asked for an attorney general’s decision.

Eric Yollick, Publisher of The Golden Hammer, Montgomery County’s leading daily newspaper, pondering his next article.

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