This statement should be self-evident.

However, after reading last week’s post by my friend, Yvonne Larsen, on this website about a recent Texas Supreme Court opinion, I feel I must reiterate that the Greater Houston Partnership is not Planned Parenthood.

The difference between these two organizations, and between their respective financial relationships (if any) with state and local governments in Texas, is the reason why I take issue with Yvonne’s post.

Background:

The Greater Houston Partnership (like many other local “chambers of commerce” across the state) has entered into contracts with city and county governments in the Houston metropolitan area to provide specific services in return for payment for those services.  However, the amount it receives from governments under these contracts comprises a minor amount of the money it receives annually.

A citizen filed a very broad request under the Texas Public Information Act (“TPIA”) to obtain documents from the Greater Houston Partnership (“GHP”), arguing that GHP was a “governmental body” subject to the disclosure regime of the statute because of these contracts.  Among the items sought were the entire check registers kept by GHP for all of its activities during 2007 and 2008, regardless of whether the funds received and spent as reflected in the ledgers were related to the contracts with city or county governments.

Faced with this broad request for virtually all of GHP’s financial records, the Attorney General applied an old federal-court ruling to construe the TPIA and determined that GHP had received governmental funds, so it was a governmental body.  The Third Court of Appeals in Austin affirmed the trial court’s decision in a very broad ruling, the reasoning of which could have made any private entity, that received any governmental funds for any reason, a governmental body subject to the TPIA disclosure requirements for all purposes.  That is, if you get one dollar for providing a service to the state, you’re now a governmental body whose records are subject to TPIA disclosure.

This broad ruling, and the old federal-court case it relied upon, formed the basis of the review of the appellate decision by the Supreme Court that Yvonne criticized.  The breadth of the lower-court opinion startled many private organizations across the state, which do business with, and/or receive funds from, state and local governments.  Out of the blue all of the records created and kept by these organizations might now be subject to the TPIA if they received any funds from the state—even if they received them in return for providing contractual services.  So, several organizations filed amicus briefs with the Supreme Court requesting the court to review the appellate court’s broad interpretation of “governmental body” and to provide a narrow, understandable framework for determining what type of financial relationship might give rise to TPIA coverage.  In fact, these filings included an unprecedented joint brief filed on behalf of the Chairs of both the Harris County Republican Party and the Harris County Democratic Party, who were concerned that the acceptance of state funds to defray costs of running primary elections, which already is subject to strict disclosure requirements, could now subject all of the internal affairs of both parties to the TPIA disclosure requirements (and, as a matter of full disclosure, I helped prepare that brief as Legal Counsel for the HCRP).

Now to the Supreme Court’s decision (which may be found here http://www.txcourts.gov/media/1008506/130745.pdf, with the dissenting opinion found here http://www.txcourts.gov/media/1008507/130745d.pdf):

In a thoughtful and thorough 26-page discussion of the TPIA, a six-justice majority of the Texas Supreme Court reversed the broad ruling of the Austin Court of Appeals.  In doing so, the Court did not establish any new or novel rule of law, but correctly applied existing law to the TPIA and to the contractual relationship between the GHP and other governmental entities.  Specifically, the court determined

• The TPIA’s definition of “governmental body” was unambiguous;
• Because the statute was unambiguous, the Attorney General’s reliance on an old federal court case was inapplicable, because the old opinion created a standard for determining whether an entity was a “governmental body” that was not based on the unambiguous language of the TPIA; and
• That the nature of the contractual relationship between the GHP and local governments, and the amount of the funds received by the GHP in relationship to its overall operation and funding, did not subject it to the disclosure requirements of the TPIA because GHP was not “wholly or partially sustained by public funds.”

Understanding that last determination—which comprises the core of the opinion—is critical for addressing Yvonne’s concerns. 

The court’s rule governing how the statute must be construed and applied in future cases by the Attorney General will still require case-by-case applications.  Moreover, because no one involved in the case—the individual who sought all of GHP’s financial records, GHP, or the Attorney General—sought to limit the request to GHP’s actual work for local governments, the court’s ruling arguably did not address that portion of the statutory language that applies the “governmental body” definition to “parts” of organizations that may be sustained “in whole or in part by public funds.”  Additionally, as the court pointed out, the financial records sought under the TPIA request are not beyond public disclosure requirements, because the government agencies involved in the disbursing the public funds are subject to the TPIA.

So, I go back to the statement I made at the beginning of this post.

Simply inserting “Planned Parenthood” into the first three paragraphs of the majority opinion, as Yvonne did, does not tell you anything about how the Attorney General will apply the court’s ruling to future TPIA requests directed to Planned Parenthood.  Planned Parenthood is not a chamber of commerce, and some (if not most) of its services are provided under public grants and programs totally unlike the contractual relationships between chambers of commerce and local governments.  Any properly tailored request directed to the activities of the parts of Planned Parenthood that may be sustained by public funds will still be evaluated by the Attorney General and could be subject to disclosure under the TPIA.   All this recent opinion does is provide the proper legal basis for conducting that evaluation.

Finally, it is too simplistic and very unfair to characterize the recent opinion as being solely attributable to Justice Guzman.  Six of the nine justices had to review and agree with the 26-page opinion before it was issued.  Such opinions are the product of a joint effort of those justices.

We all need to be vigilant in our attention to how our elected judiciary construes and applies the law of this state.  But we also have a duty not to misconstrue their decisions.  Unfortunately, Yvonne’s post last week misconstrued the recent work of the court, and ended up misplacing criticism on a fine Justice of that court, as well as on her colleagues who joined that opinion.