Writer/philosopher Tom Clancy said in a 1995 interview that, “The more information a guy has, the more likely he is to say, ‘Hey, King Charlie, you really blew that call.’“ Obtaining such information from the sovereign has always been difficult. Under the modern regime, the sovereign has passed statutes requiring its organs to release information to the people when requested, subject to certain exceptions, and if the information is withheld, to allow the requestor to sue these governmental organs for release of wrongfully withheld information, but the sovereign has, effectively, infinite resources. The Texas Public Information Act (TPIA), which is modeled on the federal Freedom of Information Act (FOIA), includes a statute stating that “the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails” in a mandamus suit. Recent and pending cases in Texas show the limitations of the TPIA “fee shifting” statute under interpretations given them by the courts.

Under the a recent Texas court of appeals opinion in Texas State Bd. of Veterinary Medical Examiners v. Giggleman, 408 S.W.3d 696 (2013), it is now impossible to obtain fees in a TPIA mandamus action unless the governmental body appeals the ruling. Giggleman had obtained a ruling on his motion for partial summary judgment that the board could not withhold the requested information (a complaint against Giggleman), leaving the only matter to be tried as the attorney’s fees. However, before the final judgment was entered, the board released the information and filed a plea to the jurisdiction claiming that the case was mooted by the “voluntary” release of the documents, and there was therefore no subject matter jurisdiction.

However, the trial court overruled the plea and entered final judgment of attorneys’ fees, but the court of appeals reversed holding that, in order to be entitled to fees, a plaintiff does not “prevail” for purposes of qualifying for attorney’s fees unless it obtains (1) judicially sanctioned “relief on the merits” of its claim that (2) “materially alters the legal relationship between the parties.” The summary judgment, an interlocutory order, it held to be neither. Id. at 703-04. The opinion noted plaintiff’s argument that this ruling would create “bizarre incentives” for plaintiffs in TPIA cases to bypass summary judgment and instead go to trial in order to preserve their rights to attorney’s fees, while enabling governmental bodies to thwart claims for attorneys’ fees incurred through protracted litigation “simply by providing the relief originally sought by plaintiffs” late in the case. However, the court stated that Giggleman’s “remedy for these perceived injustices would lie in the Legislature rather than the Judicial Branch.” Actually, it is not at all clear that even going to trial would succeed in eliminating this threat, as the governmental body can always request that the fee request go to a jury and release the documents in the interim. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000) (reasonableness of fees in TPIA cases is a fact issue for the jury). Applicability of a claimed exception to release of information is, however, a question of law for the court. Id. at 562. Thus, there will always be ample time for a governmental body to turn over the information prior to entry of a final judgment.The case of City of Houston v. Kallinen, --- S.W.3d ----, 2016 WL 4409099 (Tex. App.—Houston [1st Dist. 2016, motion for rehearing pending), where the trial court entered a final judgment which the City appealed and eventually lost its first plea to the jurisdiction (on the claim the Texas attorney general had exclusive jurisdiction) at the Texas Supreme Court, the City raised for the first time on remand that it had “voluntarily” released the documents in response to the trial court’s order on summary judgment. The Texas First Court of Appeals rejected the applicability of Giggleman noting that, unlike the board in Giggleman, the City has consistently claimed that it released the documents in compliance with the court’s ruling.” Id. at *2. The court also relied on Allstate Ins. Co. v. Hallman, 159 S.W.3d 640 (Tex. 2005) to hold that the fees issue can defeat mootness — but Allstate is a declaratory judgment act case. The court of appeals has asked for additional briefing on the City’s motion for rehearing. Behind this briefing request is the fact that Texas cases have made it impossible for a TPIA plaintiff to obtain fees pursuant to the Texas Declaratory Judgment Act on the grounds that if there is an underlying justiciable controversy regarding construction of statutes that could provide a jurisdictional basis for a declaratory judgment claim a TPIA requestor purports to assert, it must exist solely by virtue of the waiver of sovereign immunity contained in the TPIA. Consequently, any such UDJA claims would be merely incidental to the relief the requestor could obtain through his TPIA mandamus claim — and could not be a basis for UDJA attorney’s fees. See Jackson v. State Office of Administrative Hearings, 351 S.W.3d 290, 301 (Tex. 2011); Giggleman, 408 S.W.3d at 708.

The Texas cases arrived at this point by following the federal cases — the Giggleman requirement of judicially sanctioned “relief on the merits” of its claim that “materially alters the legal relationship between the parties” is taken straight from Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Services, 121 S.Ct. 1835 (2001). However, Buckhannon was a case brought under the FHAA and ADA, whose fee shifting provisions permit fees to be awarded to a “prevailing party” in litigation, which, as the court pointed out, is a “legal term of art.” Id. at 1839. As pointed out in the briefing to a case currently pending for the Texas First Court of Appeals, Nehls v. Hartman Newspapers, the FOIA and TPIA fees statutes use the language “substantially prevails,” a term which at the time the TPIA was passed, specifically included the “catalyst theory” for an award of attorney’s fees. As put in Cazalas v. U.S. Dept. of Justice, 660 F.2d 612, 623 (5th Cir. 1981), the lawsuit itself “had a substantial causative impact on the release of the document.” In the case underlying the Nehls appeal, the sheriff had refused to release basic information about a request, but then turned over the requested basic information almost immediately upon being sued and argued that the matter was moot.

Federal Circuit decisions did extend Buckhannon to FOIA cases, with the case of Oil, Chemical and Atomic Workers Int’l v. DOE, 288 F.3d 452 (D.C. Cir. 2002) holding that “prevailing party” and “substantially prevailing” were “substantially similar” and holding a record agreement insufficient to meet the test. After years of decisions following Buckhannon misinterpreting its application to FOIA cases, Congress amended the FOIA fee statute in 2007 to explicitly include the catalyst theory of recovery. The Senate report accompanying the amendment stated that the changes where designed to avoid a situation where

[a] government agency refuses to disclose documents even though they are clearly subject to FOIA. The FOIA requestor has no choice but to undertake the time and expense of hiring an attorney to file suit to compel FOIA disclosure. Some time after the suit is filed, the government agency eventually decides to disclose the documents — thereby rendering the lawsuit moot . . . . [This would] effectively tax[] all potential FOIA requestors. As a result, many attorneys could stop taking on FOIA clients — and many FOIA requestors could stop making even legitimate and public-minded FOIA requests — rather than pay what one might call the “Buckhannon tax.”

In Texas, King Charlie says you can sue him if he doesn’t let you see information about his missed calls. But you will have to pay the Buckhannon tax.