When someone does an open records request, if the entity does not want to comply, he or she must appeal to the Texas Attorney General's office within 10 business days. Jennifer Riggs had some questions about the State Fair of Texas and how some money was spent, but the State Fair said it spent no money from public funds. Instead of going to the AG, the State Fair of Texas decided to sue Riggs... and lost. 

DMN

On March 20, Austin attorney Jennifer Riggs filed an open-records request in which she asked the State Fair of Texas for a mountain of information — everything from how it made its money to where it spent its money to who decides how that money is spent to who keeps that money. Riggs wanted to see years’ worth of contracts and correspondence with the city of Dallas, the State Fair’s landlord, and the deals of presidents past (Errol McKoy) and present (Mitchell Glieber). Riggs didn’t say for whom she was filing the request, only that it was “on behalf of a client.” And, said Riggs, if the State Fair thought it was immune from such a request, officials were free to ask the Texas Attorney General for an opinion.

The State Fair of Texas had something else in mind: On April 21, it sued Riggs and her law firm Riggs & Ray in Dallas County court, insisting the State Fair of Texas is not a ‘governmental body’ as defined by the Texas Public Information Act. Said the lawsuit, “Neither SFT nor any part, section, or portion of SFT spends public funds or is supported in whole or in part by public funds.” The State Fair of Texas wanted a judge to tell Jennifer Riggs she and her client were out of luck.

Instead, Judge Staci Williams ruled Thursday that the State Fair sued Riggs in order to make her and her client tuck tail and disappear, lest they go broke fighting for records the fair is refusing to hand over. Williams agrees with Riggs: The fair’s lawsuit qualifies as a SLAPP suit — that is, a Strategic Lawsuit Against Public Participation filed whenever governmental entities don’t want to hand over public records.

Here's the PDF for the judge's ruling and here's parts I particularly like. 

II. Summary of the Argument Riggs’ request for information to the SFT was both an exercise of its right to free speech and an exercise of its right to petition as understood under the Texas Citizens Participation Act (the “TCPA” or the “Act”). Accordingly, the SFT now has the burden to establish by clear and specific evidence a prima facie case for each essential element of its claim. However, even if the SFT is able to put on such a showing, its case must still be dismissed because Riggs has shown by a preponderance of the evidence that the SFT’s lawsuit is foreclosed by TEX. GOV’T CODE § 552.325(a), which in turn prohibits any person or entity from suing a requestor in order to withhold information. 

B. The SFT’s lawsuit is based on, relates to, and is in response to Riggs’ right of free speech.

i. The right of free speech under the TCPA. The TCPA provides its own definitions of constitutional rights. See Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro Dallas, Inc., Case No. 05-11-01337-CV, 2013 WL 3024692, at * 2 (Tex. App.—Dallas 2013, no pet.) (mem. op.) (“[Wholesale argues that] the statements BBB made about Wholesale on BBB’s website amount to 0 commercial speech that should not be given protection under the First Amendment. But as we noted in BH DFW, the TCPA contains its own definition of “the right of free speech” that controls the applicability of the TCPA to particular speech.”) The TCPA defines the exercise of the right of free speech as “a communication made in connection with a matter of public concern.” TEX. CIV. PRAC. & REM. CODE § 27.001(3). A matter of public concern is further defined as an issue which relates to:

(A) health or safety;

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace. TEX. CIV. PRAC. & REM. CODE § 27.001(7).

It does not matter how the speech is communicated; if the speech is of, or relating to one of, the five categories of protected speech listed in the TCPA, the Act applies and a plaintiff’s lawsuit is amenable to dismissal. See Whisenhunt v. Lippincott, Case No. 13-0926, 2015 WL 1967025 (Tex. April 24, 2015) (overruling Whisenhunt  v. Lippincott, 416 S.W.3d 689, 700 (Tex. App.—Texarkana 2013) which had held that the TCPA only applied to public speech). ii. The Request was in connection to an issue relating to the government. The reason for the SFT’s lawsuit was that Riggs sent it a letter claiming that the SFT qualified as a governmental body under the TPIA and then requested disclosure of certain categories of documents. (Pl.’s Orig. Pet. at ¶ 9 and ¶ 17.) Riggs contended in the Request that the SFT qualified as a “governmental body” under the TCPA because the City of Dallas had given it financial support, and that the SFT and the City of Dallas share common purposes and objectives. (Request at pp. 1-2.) The SFT’s lawsuit seeks a declaration that Riggs’ contentions are wrong. (Pl.’s Orig. Pet ¶ 8 and ¶ 17.) However, whether Riggs’ contentions are ultimately correct is irrelevant as to the initial determination of whether the Request is in connection to a matter of public concern. AOL, Inc. v. Malouf, Case No. 05-13-01637-CV, 2015 WL 1535669, at *3 (Tex. App.—Dallas Apr. 2, 2015, no pet. h.) (mem. op.); see also Kinney v. BCG Attorney Search, Inc., Cause No. 03-12-00579- CV, 2014 WL 1432012, at *5 (Tex. App.—Austin 2014, pet. denied) (holding that deciding whether a communication meets the statutory definition of the “exercise of the right of free speech” does not entail deciding whether the speech is 1). What is relevant is what the speech facially relates to. On its face, the Request is a communication connected to an issue relating to the government. The fact that the SFT argues that it does not actually qualify as a governmental body is of no consequence and cannot prevent the application of the Act

C. The SFT’s lawsuit is based on, relates to, and is in response to Riggs’ right to petition. i. The right to petition under the TCPA. The TCPA defines the exercise of the right to petition as meaning: (A) a communication in or pertaining to: (i) a judicial proceeding; (ii) an official proceeding, other than a judicial proceeding, to administer the law; (iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government; (iv) a legislative proceeding, including a proceeding of a legislative committee; (v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity; (vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue; (vii) a proceeding of the governing body of any political subdivision of this state; (viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or (ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;

(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; (C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; (D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and (E) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state. TEX. CIV. PRAC. & REM. CODE § 27.001(4). 

Interesting that Riggs also requestedt that the State Fair of Texas either comply or ask the AG if the Texas Public Information request applied.

..the Request is clearly covered by several of the Act’s definitions of the exercise of the right to petition. First, the Request is a communication pertaining to “an official proceeding5 , other than a judicial proceeding, to administer the law.” TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(ii). Second, the Request is a communication pertaining to “an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government.” TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(iii). And third, the Request is “a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding.” TEX. CIV. PRAC. & REM. CODE § 27.001(4)(C). This last definition is 5 An “official proceeding” is further defined as meaning “any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant. TEX. CIV. PRAC. & REM. CODE § 27.001(8). Def.’s Brief in Support to its MTD pursuant to the TCPA Page 12 especially appropriate as the Request explicitly invited a review by the Texas Attorney General of any dispute regarding the applicability of the TPIA to the SFT

Here's something I learned from this suit. Requesters cannot have lawsuits lodged against them for asking for information. 

Lawsuits against requesters are expressly prohibited. Section 552.324 of the TPIA provides in part as follows: (a) The only suit a governmental body may file seeking to withhold information from a requestor is a suit that:

 (1) is filed in a Travis County district court against the attorney general in accordance with Section 552.325; and (2) seeks declaratory relief from compliance with a decision by the attorney general issued under Subchapter G. TEX. GOV’T CODE § 552.324(a) (emphasis added). Section 552.325 of the TPIA provides in part as follows: A governmental body, officer for public information, or other person or entity that files a suit seeking to withhold information from a requestor may not file suit against the person requesting the information. The requestor is entitled to intervene in the suit. TEX. GOV’T CODE § 552.325(a) (emphasis added). The policy behind this prohibition is plainly to prohibit retaliation and a chilling effect against those who exercise their rights under the TPIA. See Lake Travis Independent School Dist. v. Lovelace, 243 S.W.3d 244, 250 (Tex. App.-Austin 2007, no pet.). In Lovelace, the school district filed a lawsuit against parents the district contended had simply made so many TPIA requests that their conduct was an abuse of process and a common law nuisance. The parents filed a plea to the jurisdiction, contending that the express language of the TPIA barred the district’s lawsuit and deprived the trial court of jurisdiction. The trial court and the Third Court of Appeals agreed with the parents: [E]ven construing the pleadings in favor of the District, we are constrained to find that the TPIA's prohibition against governmental bodies suing requestors of public information in section 522.324 bars the District from bringing this suit. Lovelace, 243 S.W.3d at 251. Similar considerations apply here. 

There's an interesting argument  from Riggs on whether a private entity that also takes public money is subject to the TPIA. (Texas Public Information Act). 

IN the final order, which is at the back of the PDF, the court not only found that the defendant incurred $38,587.32 in attorneys fees, but counted IF it went to appeals court another $30,000 if appealed to Court of Appeals, $20,00 if to Texas Supreme Court and $15,000 if petition for revient granted, PLUS brought $38.587.32 as a sanction.