By: J. Grady Randle, President, Randle Law Office Ltd., L.L.P
In Randle Law Office Ltd., LLP v. Paxton (D-1-GN-19-002731, 200th Judicial District Court, Travis County), the question presented was whether an Errors and Omissions insurance policy (not a certificate of insurance) was public information under the Public Information Act (Texas Government Code Chapter 552). A request was recently made for a “Copy of Randle Law Firm errors and omissions insurance coverage policy.” If an E&O policy must be produced from a contractor, are personnel files, bank statements and any other non-privilege business documents open to disclosure? Randle Law Office (RLO) is a private law firm that contracts with various cities to provide city attorney services.
A timely letter was written to the Texas Attorney General (AG) to argue that the policy didn’t have to be produced because it doesn’t meet the definition of “public information.” The city never had possession of it and does not have the authority to ask for it. The AG initially ruled that the policy was a public record by saying that:
The city represents the submitted information is not public information under the Act because it “does not own the information, have a right of access to the information, or spend or contribute public money for the purpose of writing, producing, collecting, assembling, or maintaining the information.” However, upon review we find the city maintains the submitted information in connection with the transaction of its official business. Accordingly, we conclude the information at issue is subject to the Act. (OR2019-12197)
Following the ruling, RLO filed a petition in district court (using Government Code 552.353(b)(3), (c)), alleging the policy is not public information, the policy is confidential, and the Act is an impermissible delegation of legislative authority. The city intervened the same day, asserting its affirmative defense under Texas Government Code section 552.353(b)(3). (The Travis County District Clerk isn’t used to moving that fast!) The case was immediately set for trial, and discovery requests were sent, but the case settled based on a previous ruling (OR2017-28501) holding that a law firm’s policy is not a public record because the firm does not have insurance specifically pertaining to its representation of the city; the policy is personal to the named law firm; it is not in connection with the transaction of any official city business; the policy was not created for the city, produced for the city, not maintained for the city and the city does not have a right of access to the information. A warning to the wise: the AG website search function is not comprehensive, so use Lexis or Westlaw. Meanwhile, the requestor filed criminal charges alleging violations of the Act and misuse of public funds. The best part? The District Attorney (DA) asked the AG for their file but was told that the DA would have to make a public information request to get it! That public integrity investigation into violations of the Act ended when the DA learned that there was a lawsuit pending, filed within 10 days, and was settled as far as open records go. The misuse of public funds allegation was likewise dismissed when the DA learned that the city did not pay for the litigation.