Texas’ Supreme Court has ruled that the Texas Commission on Environmental Quality met a 10‑business‑day deadline in responding to a Sierra Club records request, reversing a lower‑court order that would have forced the agency to immediately release more than 6,000 pages of internal documents.
The case is being remanded for further review of whether those records are protected by the deliberative‑process privilege—a legal doctrine that lets government agencies withhold internal, pre‑decision communications. If not, TCEQ may still be required to release the documents.
Background
As previously reported, the Sierra Club—a left-wing environmental activist group—requested records from the Texas Commission on Environmental Quality (TCEQ) on July 1, 2019, regarding a common chemical manufactured in Texas. The request was made under the state’s Public Information Act.
The following day, TCEQ asked the Sierra Club to clarify whether it sought any confidential information, as the agency would need to seek an Attorney General Opinion for approval.
The Sierra Club immediately answered that it sought all information—including confidential—that must be released under the PIA.
TCEQ sent the request to the Office of the Attorney General (OAG), which was not received until July 18, 2019. TCEQ sought to withhold certain documents under its deliberative‑process privilege.
The OAG found no reason for TCEQ to withhold the relevant documents, but also decided that the agency blew through its 10-business-day deadline under PIA.
In calculating the ten days, the OAG excluded the date the request was received (July 1), the Independence Day holiday (July 4), and weekends (July 6, 7, 13, and 14). That calculation put the 10-business-day deadline at July 16—two days before the OAG received TCEQ’s letter.
As a result, TCEQ faced the prospect of producing over 6,000 pages of documents to the Sierra Club—a default requirement when an agency fails to meet the deadline.
However, TCEQ sent OAG a request for correction as to timeliness based on three pieces of information that weren’t considered.
First, that Friday, July 5, wasn’t a business day because the agency was closed in observance of Independence Day. Second, that its July 2 clarification email to the Sierra Club provided necessary context and should have reset the 10-business-day period. Third, that its letter to the OAG was placed in the mail the day before it was received—qualifying as a submission under the requirements.
The OAG refused to reconsider its decision and TCEQ sued under the PIA, seeking a declaratory judgement that would allow the agency to withhold the contested documents.
Sierra Club intervened, seeking a writ of mandamus to compel disclosure.
The OAG ultimately disavowed its prior opinion, deciding that TCEQ did, in fact, meet the 10-business-day deadline.
Nonetheless, Sierra Club maintained its claims and the district court granted summary judgment in the club’s favor, ordering TCEQ to produce 6,414 pages of documents. The court of appeals affirmed, holding that TCEQ’s request for an OAG decision was untimely.
TCEQ appealed this decision to the Supreme Court of Texas. Oral arguments were heard in September.
The Ruling
On April 17, the Court ruled that TCEQ satisfied the 10-business-day requirement, remanding the case for the lower courts to decide whether the agency’s records are protected by the deliberative-process privilege.
Justice James P. Sullivan appeared to have fun when writing the opinion of the court, turning it into a three-game series that TCEQ won in just two.
TCEQ was only accused of being two days late, and presented arguments for why three additional days should not have counted toward the deadline—with a separate argument being made for each of the days.
For this reason, Sullivan concluded that only two of the three arguments need be accepted by the court to rule in TCEQ’s favor.
In “Game 1,” the Court concluded that “TCEQ’s shot clock” didn’t start running until July 2, 2019. That’s because TCEQ sent Sierra Club one of the few follow-ups that the PIA allows.
TCEQ also won “Game 2,” as the Court agreed that the letter had been sent the day before it was received—meaning the requirement was satisfied on July 17 rather than 18.
Because the first two games were won by TCEQ, the agency already took the series. This meant it had satisfied the 10-business-day deadline, leading the Court to reverse the court of appeals’ decision and remand for further proceedings.
The Court did not rule on whether July 5 counted as a business day for TCEQ, as it was no longer necessary. Justice Sullivan noted that this is “perhaps for the best, because deciding this issue would be exceedingly complex.”
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