The dispute, Texas Commission on Environmental Quality v. Ken Paxton, Attorney General of Texas, and Sierra Club, No. 23-0244, arose from a Sierra Club request to which the agency responded by asking "whether your request is seeking confidential information." The agency later sought to withhold documents under the Act's agency memorandum exception.
Under the Act, an agency seeking to withhold responsive information must "ask for the attorney general's decision and state the specific exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request." The statute provides that information not timely submitted "is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information."
Writing in dissent, Justice Busby said the majority erred "for three separate and independent reasons." He argued first that the agency's confidentiality question could not qualify as a permissible narrowing inquiry because the agency "does not contend that any responsive documents are confidential" and relied only on the memorandum exception, which "makes their disclosure optional."
Second, Justice Busby wrote, even treating the inquiry as directed at confidentiality, it failed the statutory requirement that a permissible inquiry seek to "narrow[]" the "scope of a request." He reasoned that asking a requestor whether the scope of the request includes confidential information "is essentially asking whether the requestor wants information it cannot have," calling it a "seemingly nonsensical question."
Third, he said the majority's approach conflicts with the statutory text tying the ten-day clock to the date the request is received. Justice Busby distinguished City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010), which tolled the deadline where a request was "so unclear or overbroad that a government entity, acting in good faith, cannot understand what is requested." He noted the majority itself described the Sierra Club's request as "pellucid."
Justice Busby wrote that the Legislature's policy choices embodied in the Act's plain text cannot be second-guessed by the court "by asserting that they 'can't be right,'" quoting the majority opinion. He added that "[a]gencies seeking to withhold public information should not get special treatment unavailable to any other party, particularly in the face of tight timelines and stated policies favoring disclosure."
The dissent agreed with the majority that the mailbox rule applies to the agency's opinion request but said "that holding alone is insufficient to save the agency's opinion request from being untimely." Justice Busby also declined to reach a separate issue about whether July 5, 2019, counted as a business day when the agency was closed, noting the statute has since been amended to let agencies designate closed days as nonbusiness days.