Oct. 20—The Odessa American's almost four-year battle with the City of Odessa over public records access is over, as the Texas Supreme Court on Friday declined to take up the OA's appeal of an appellate court decision in March to dismiss the lawsuit.
AIM Media Texas LLC attorney John Bussian said the Odessa American "went the distance — in its case that is a lot like the one against Uvalde— to try to hold the City to the requirement in the Texas public records law that the government 'promptly' turn over public records, rather than months later.
"The ruling today to leave standing the 2-1 decision by the Eastland Court of Appeals means that the public is without a remedy when the government delays producing records until after a lawsuit is filed to enforce the right to know," Bussian said.
Fellow attorney Jeff Nobles said the legal team stands "by our legal arguments but (we) respect the decision of the Texas Supreme Court. The Court has discretion to deny review and does so in about 90% of the many cases it considers each year."
Both said not only the media, but also ordinary citizens are affected by the gamesmanship public entities like the City of Odessa use to delay the release of public information.
Nobles said since 1976, Texas courts have always said that the basic information about local crimes and arrests must be immediately available to the public and the news media.
"But the City of Odessa has created a loophole to the law, by claiming it can delay until it has been sued, up to the moment a judge is about to sign an order requiring the City to comply with the law," Nobles said. "The Eastland Court of Appeals said the City must comply with the law and the newspaper can sue again when the City delays. But the courts have not answered the real question created by the City's loophole. It's unclear how we can enforce the requirement of immediate disclosure if the City is allowed to delay until the very minute before the court rules, which may take years."
Odessa American Publisher Patrick Canty said the result of the case is unfortunate for all Texans.
"As long as this loophole remains, the open records law in this state is a toothless tiger," Canty said. "Any governmental entity can reduce a citizen to a penny waiting for change in that person's attempt to gain timely access to basic public information. It makes a mockery of a law that is intended to protect the public's right to information that belongs to the public in the first place."
AIM Media's attorneys are not alone in their worry about the right of access to public information.
In March, the 11th Texas Court of Appeals in Eastland, in a 2-1 decision, affirmed a lower court's decision to dismiss the Odessa American's lawsuit against the City of Odessa, but both the majority and dissenting opinions agreed the City of Odessa has a history of skirting open record laws.
The OA's parent company, AIM Media Texas LLC, filed the lawsuit against the city almost four years ago alleging the City was violating the Texas Public Information Act (TPIA) by not releasing "basic" public information contained in public crime records within 10 days, as required by law.
In March, the justices wrote they did not consider the merits of the OA's contention that the City delayed the release of information, but they also wrote this:
"The record before us demonstrates that the City—which at one time was willing and capable of providing basic information to media sources 'within hours' — is now delaying the production of the same information for days, weeks, and even (in the case of the mass shooting) months. The City has offered little justification or reasons for its abrupt change in its policy and practice of releasing requested information, other than that it simply wanted to change it."
The justices wrote they were constrained because the legislature has limited the type of relief available under the TPIA.
Justice Bruce Williams disagreed with his colleagues in a lengthy dissenting opinion, noting AIM Media Texas was not seeking any money damages beyond attorneys' fees.
Williams wrote that AIM Media Texas should have prevailed because the City had not met its "formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."
In fact, Williams wrote, "The record leaves little doubt that future noncompliance should reasonably be expected. It shows a consistent pattern of delays in producing basic information— in violation of the rights of the public and the press."
Williams stated in his dissent that he agrees with Chief Justice Yvonne T. Rodriguez of the 8th Circuit Court of Appeals, who recently wrote that a ruling similar to his colleagues' would have a "chilling effect" on the rights of citizens trying to obtain public information.
The justice further wrote the lawsuit isn't just about the OA making money by reporting the news.
"The question at issue is not only whether Appellant should be given information that will further Appellant's operations and profitability, but whether the community as a whole is given ready access to information that is necessary to maintain its safety and security and to hold law enforcement accountable for its activities," Williams wrote.