Image: Guillaume Courteois, “David and Goliath,” 1650-1660, Oil on Canvas, Palazzo del Conservatori, Rome.
The Golden Hammer Staff Reports
Conroe and Beaumont, March 19 – The Golden Hammer, Montgomery County’s leading daily newspaper, and its Editor Eric Yollick celebrated “Sunshine Week,” March 14 to 20, in honor of open government with a victory in the Beaumont Court of Appeals over the San Jacinto River Authority (SJRA). Justice Hollis Horton wrote the unanimous March 18, 2021, opinion in which Chief Justice W. Scott Golemon and Justice Leanne Johnson joined.
Editorial Board member Ashley “Ashkey” Burke said, “This victory is major for the public and for the readers of our newspaper, in particular. We appreciate the serious and sober approach the Justices of the Court of Appeals brought to this vital issue so important for the people who live downstream from SJRA’s Lake Conroe Dam. We’re happy that, during ‘Sunshine Week’ which celebrates the importance of ‘open government,’ we’ve made a major stride in pulling very significant public documents closer to seeing the light of day and out of the darkness of the SJRA.” Publisher Kelli Cook gave a “thumbs up” but declined further comment. Yollick declined comment without any hand gestures.
“We’re happy that, during ‘Sunshine Week’ which celebrates the importance of ‘open government,’ we’ve made a major stride in pulling very significant public documents closer to seeing the light of day and out of the darkness of the SJRA.” – – The Golden Hammer Editorial Board Member Ashley Burke
In February, 2019, 284th District Judge Kristin Bays issued a Writ of Mandamus ordering SJRA to provide to this newspaper and Yollick portions of its Emergency Management Plan for the operation of the Lake Conroe Dam in response to a public information request Yollick had submitted in 2017 to the state agency. The Court of Appeals affirmed Judge Bays’ Writ of Mandamus and ordered SJRA to provide the information to The Golden Hammer and to Yollick.
The case arises from the following facts. 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.”
On September 27, 2017, Yollick, individually and then as Publisher of The Golden Hammer, submitted a request under the Texas Public Information Act, Chapter 552 of the Texas Government Code, for:
- The “carefully prepared engineering plan” to which SJRA’s September 8 press release referred;
- 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;
- All flood control plans SJRA has developed Since August 28, 2007.
When SJRA responded to the Yollick’s September 27 request for public information on October 11, 2017, SJRA advised him 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.”
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.”
Nowhere in SJRA’s October 11, 2017, response to the newspaper’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 the request, but SJRA did request such a determination on October 4 with respect to another request by someone named Brad Laney.
By failing to make a request for an opinion with respect to the 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.
SJRA told Yollick in SJRA’s October 11 letter, “Pending a decision from the Attorney General, the responsive information is being withheld.”
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.
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.
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…”
Litigation against SJRA and why Yollick and The Golden Hammer wanted the SJRA information
Yollick is not a party nor an attorney to any pending litigation against SJRA other than this mandamus action.
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.
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.”
Yollick and The Golden Hammer filed the lawsuit in the trial court on October 16, 2017. The case proceeded to trial on February 8, 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.”
He testified in the trial as a fact witness and as an expert on litigation matters. He 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 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…”
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.”
Trial court’s ruling
The trial court, Judge Bays, 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 [the newspaper]’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.”
The trial court ordered an in camera inspection of the EAP on February 13, 2019. After the trial court conducted an in camera inspection of the EAP, the trial court issued a writ of mandamus and order SJRA to produce a redacted version of the EAP to the Publisher, by Final Judgment dated February 22, 2019.
In the Final Judgment, Judge Bays 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.”
- “…because SJRA did not comply with the statutory requirements to withhold public information )TEX. GOV’T CODE552.301(b)) as to [the Publisher]’s request, “the information (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.”
- The Publisher “is not involved in any such lawsuit [involving Harvey] in any capacity.”
- “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.”
Court of Appeals Opinion
The Court of Appeals issued a 26-page Opinion on March 18, 2021, which Justice Hollis Horton wrote. The Opinion concluded,
“We disagree with the SJRA’s claim that the record contains legally insufficient evidence to support the trial court’s judgment. We also disagree with the SJRA that the trial court misinterpreted the Act.45 For these reasons, the trial court’s judgment is AFFIRMED.”