GREATER HOUSTON PARTNERSHIP, Appellant v. Greg ABBOTT, Texas Attorney General; and Jim Jenkins, Appellees.
No. 03-11-00130-CV.
Court of Appeals of Texas, Austin.
Jan. 31, 2013.
Rehearing Overruled Aug. 6, 2013.
407 S.W.3d 776
Stepping back for a moment from the bitterness, anger, and hostility that so frequently accompany custody litigation, any parent can recognize the purpose of the summer access statutes. Each parent ought to have an extended and uninterrupted period of time in which to vacation with the child, whether the intent is to visit grandparents, travel to Yellowstone National Park, soak up the sun on the beach, or fish in mountain streams. Such are the joyous memories of childhood.
We reverse the trial court‘s order of clarification and render judgment denying Jo-Ann‘s motion to clarify.
Kimberly L. Fuchs, Chief, Open Records Litigation, Austin, TX, Eric Yollick, Yollick Law Firm, P.C., C. Travis Owens, Woodlands, TX, for Appellees.
Before Chief Justice JONES, JUSTICES PEMBERTON and ROSE.
OPINION
JEFF ROSE, Justice.
In this case, we decide whether appellant Greater Houston Partnership (GHP) is “supported,” in whole or in part, by public funds such that it is a “governmental body” subject to disclosure of information under the Texas Public Information Act (PIA). See
FACTUAL AND PROCEDURAL BACKGROUND
GHP is a Texas nonprofit corporation that describes itself as being akin to a chamber of commerce for a ten-county area centered around the City of Houston, Texas. Its corporate purpose, as set forth in its articles of incorporation, is “the promotion of the economic stability and growth” of the Houston area, “maintaining a chamber of commerce for the purpose of promoting the public interest” in the Houston area, “acquiring, preserving, and disseminating valuable business information,” and “generally promoting and assisting the improvement of commercial, industrial, agricultural, civic, and cultural affairs” of the Houston area. It describes its principal objective as “build[ing] regional economic prosperity,” by “facilitat[ing] relocations and expansions in the Houston area; international outreach initiatives such as business development missions outside the U.S. and receiving foreign trade delegations; and strategic planning.” According to GHP, it has an annual operating budget of approximately $11.7 million, the bulk of which comes from its 2,100 member companies, but it also receives public funds “to provide research, advertising, and economic development services to the City of Houston, Harris County, Port of Houston Authority, and The Woodlands.” GHP maintains that those public funds “are payments for services rendered pursuant to contract.” Of particular relevance to this case are two of GHP‘s contracts with the City of Houston, roughly covering the years 2007 and 2008, under which the City of Houston paid GHP $1.67 million in public funds. Under the terms of these contracts, GHP agrees “to improve the economic prosperity of Houston and the Houston Airport System” (HAS) by performing the following broadly stated scope of services:
Identifying new business opportunities, securing economic incentives, and increasing outreach and recruitment activities to the region‘s targeted key industries to strengthen the City of Houston as a competitive place to do business. - Conducting qualitative and quantitative research to assist HAS and the City of Houston‘s convention and visitor‘s bureau with their marketing efforts.
- Supporting and coordinating HAS on a comprehensive marketing program to develop new air routes and international business.
- Promoting HAS stories in international markets and highlighting HAS efforts to provide airports allowance for expansion and ease of transportation.
- Coordinating on matters of mutual interest before the United States Congress, federal agencies, the Texas State Legislature, and Texas agencies.
- Providing the City of Houston with full membership and exclusive benefits as a general partner of GHP.
- Providing the City of Houston with tables/tickets to various events.
In return for these services, the City of Houston paid GHP $196,250 per quarter, or $785,000 total, under the 2007 contract and $221,250 per quarter, or $885,000 total, under the 2008 contract.
In May 2008, Jenkins submitted a public-records request to GHP seeking a copy of GHP‘s check register for “all checks issued for the year 2007,” including the number, date, payee, and amount for each check listed. GHP denied that it was a “governmental body” subject to the PIA such that it had to comply with Jenkins‘s request and referred the matter to appellant, the Texas Attorney General (Attorney General), whose office is responsible for processing challenges to open-records requests under the PIA. See
In response to the Attorney General‘s letter ruling, GHP filed this suit against the Attorney General seeking declaratory judgment that GHP is not a governmental body under the PIA, that the Attorney General has no jurisdiction over GHP, and that the Attorney General‘s letter ruling that GHP is a “governmental body” under the PIA is incorrect and without force. Jenkins, the requestor, subsequently intervened in the case. After a bench trial, the district court found that GHP received public funds from the City of Houston “to provide economic development and promotion services,” that GHP and the City of Houston “shared the common purpose or objective of economic development and promotion,” and that the contract between GHP and the City of Houston created an “agency-type relationship.” Based on these findings, the district court concluded that GHP was supported by public funds, that GHP was a “governmental body” under the PIA, and that the requested infor
ANALYSIS
GHP brings two issues on appeal. The first challenges the district court‘s finding that GHP is a “governmental body” required to disclose public records under the PIA. Specifically, GHP asserts that the district court “failed to follow traditional rules for construing GHP‘s contracts and erred in finding that GHP‘s 2007 and 2008 contracts with the City of Houston made GHP an ‘agent’ of the City of Houston that is ‘supported’ with public funds and whose internal check registers are subject to public disclosure.” The district court should have focused, GHP asserts, on whether GHP, based on its contracts to provide services to the City of Houston, was “supported in whole or in part” by public funds. See
Standards of review
Whether an entity is a “governmental body” under section 552.003 of the PIA is a matter of statutory construction that we review de novo. Texas Ass‘n of Appraisal Dists., Inc. v. Hart, 382 S.W.3d 587, 590 (Tex.App.-Austin 2012, no pet.) (citing City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000) (noting that matters of statutory construction are legal questions, and specifically that whether information is subject to PIA is a question of law)); see State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) (holding that statutory construction is a matter of law, which is reviewed de novo). Our primary objective in statutory construction is to give effect to the Legislature‘s intent. See Shumake, 199 S.W.3d at 284. We seek that intent “first and foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). We use statutory definitions provided. See
GHP‘s assertion that it is not a “governmental body”
Under the PIA, public information is available to all members of the public. See
Seeking the Legislature‘s intent first and foremost in the plain meaning of the PIA‘s words proves surprisingly troublesome in this context. As we recently noted in Hart, the meanings of the word “supported” are so broad and varied that any private entity that receives any public funds can be said to be, at least in part, “supported” by those public funds. See Hart, 382 S.W.3d at 591-92. Such an interpretation, however, would lead to absurd results in the context of the PIA: privately controlled and operated organizations would be subject to disclosure under the PIA simply because those organizations performed services or provided goods under bona fide government contracts. Surely the Legislature did not intend to extend PIA obligations to, for example, the vendor who sells paper to a governmental agency, even if the revenue from such sales entirely supported the vendor‘s business.2
At the other end of the spectrum are arguments that “support” requires some magnitude of support from public funds not specified in the text of the PIA. The dissent would interpret the phrase in such a way as to not require public disclosure unless the entities receiving the public
When statutory text is ambiguous, we may resort to rules of construction or statutory aids, including deference to an administrative agency‘s construction of the statute if that construction is reasonable. See Texas Citizens, 336 S.W.3d at 624-25 (agency deference); Entergy, 282 S.W.3d at 437 (rules of construction and statutory aids). This deference is especially applicable here because the Legislature requires the Attorney General to determine whether records must be disclosed pursuant to the PIA. See
Since 1988, Texas Attorney General opinions and open-records letter rulings addressing the definition of “governmental body” under section 552.003(1)(A)(xii) have relied heavily on the analytical framework supplied by the federal Fifth Circuit Court of Appeals in Kneeland v. National Collegiate Athletic Ass‘n, 850 F.2d 224 (5th Cir.1988). See, e.g., Tex. Att‘y Gen. Op. No. GA-0666 (2008); Tex. Att‘y Gen. Op. No. GA-0603 (2008); Tex. Att‘y Gen. OR2012-11220; Tex. Att‘y Gen. OR2001-4849; Tex. Att‘y Gen. LO-97-017 (1997). The Fifth Circuit created this framework by reviewing the Attorney General‘s pre-1988 opinions on this issue, analyzing whether a private entity receiving public funds is a “governmental body” for PIA
The Kneeland test
In Kneeland, the Fifth Circuit first noted that a private entity is not a “governmental body” under the PIA “‘simply because [it] provides specific goods or services under a contract with a government body.‘” See Kneeland, 850 F.2d at 228 (quoting Tex. Att‘y Gen. No. ORD-1). It then described what it determined were the three fact situations in which the Attorney General had historically determined that a private entity receiving public funds was a “governmental body” subject to disclosure under the PIA. From those three fact situations come what is now referred to as the Kneeland test:
An entity receiving public funds is treated as a governmental body under the PIA—
- unless the private entity‘s relationship with the government imposes a specific and definite obligation to provide a measurable amount of service in exchange for a certain amount of money as would be expected in a typical arms-length contract for services between a vendor and purchaser;
- if the private entity‘s relationship with the government indicates a common purpose or objective or creates an agency-type relationship between the two; or
- if the private entity‘s relationship with the government requires the private entity to provide services traditionally provided by governmental bodies.
See id. We agree with the Fifth Circuit‘s analysis of pre-1988 Attorney General opinions on this issue, but more importantly, the Attorney General agrees and has adopted the Kneeland analysis and framework as its own. Accordingly, we will analyze GHP‘s relationship with the City of Houston under the Kneeland framework as adopted by the Attorney General. See Hart, 382 S.W.3d at 593-94 (adopting Kneeland test).
1. Specific and definite obligation to provide a measurable amount of service
The Attorney General has emphasized that Kneeland‘s first inquiry is the primary consideration for determining whether a private entity is a governmental body. See Tex. Att‘y Gen. Op. No. GA-0666 (2008). This primary inquiry examines the obligation created by the relationship between the private entity and the governmental body. In this case, some of the provisions in the contract between GHP and the City of Houston impose specific and definite obligations on GHP to provide a measurable amount of service. For example, GHP must complete ten “signature events,” which are defined as “outbound recruiting trips” and “inbound site consultant familiarization tours“; organize and promote the “State of the Airport luncheon“; support two outbound business-development missions; and provide the
- Identify new business opportunities, secure economic incentives and increase outreach and recruitment activities to the region‘s targeted key industries to strengthen the City of Houston as a competitive place to do business;
- partner with the airport system to recruit, relocate, and expand business which supports the master plan, and to identify business incentives available in both public and private sectors;
- make its research capabilities available to the City of Houston‘s convention and entertainment facilities department and its convention and visitor‘s bureau for marketing reports;
- support and coordinate with HAS to develop new air routes, stimulate increased international trade and business for Houston companies;
- promote HAS stories in international markets and highlight HAS efforts to provide airports allowance for expansion and ease of transportation;
- “coordinate on matters of mutual interest” before the U.S. Congress, federal agencies, the Texas Legislature, and Texas agencies; and
- assist the City of Houston‘s mayor, should she ask for help, with “advancing various Economic Development and Marketing Initiatives.”
Although some of these seemingly aspirational provisions also list specific tasks to be performed in furtherance of the stated obligation, those tasks are not measurable or limited in any way. In other words, GHP may be required to perform additional, unlisted tasks in furtherance of its overall general aspirational obligations. Further, none of GHP‘s obligations under the contract are done in exchange for a certain amount of money; rather, GHP is paid the same amount on a quarterly basis regardless of whether or how much it does in furtherance of the contract‘s goals. To that extent the overall impression is that GHP‘s obligations under the contract with the City of Houston lack a definite structure. This is in contrast, for example, to a contract that requires an entity to provide measurable services, such as to clean state offices or provide office supplies to the governmental body in exchange for a certain amount of money.
GHP argues that it received public funds, not as support, but as a quid pro quo exchange for services. But even if this characterization is accurate, GHP‘s argument assumes that “support” can exist only in the absence of quid pro quo. We find no support in the PIA, the Attorney General opinions, or Kneeland for that proposition. Further, while Kneeland noted that the organization‘s members had “received a quid pro quo, in sufficiently identifiable and measurable quantities of services, for any public fund expenditures,” the focus was not on the quid pro quo, but on the fact that there was “sufficiently identifiable and measurable quantities of services.” See Kneeland, 850 F.2d at 230.
In sum, we cannot say that overall the contract here imposes specific and definite obligations on GHP to provide a measurable amount of services to the City of Houston in exchange for a certain amount of money, as would be expected in a typical arms-length contract for services between a vendor and purchaser. Thus, we must conclude that GHP “is supported in whole or in part by public funds.” See Tex. Att‘y Gen. No. GA-0666.
Even if GHP‘s relationship with the City of Houston did not meet the primary prong of the Kneeland test, it clearly meets the second prong—i.e., it indicates a common purpose or objective. The trial court specifically found that, “Under the contract, GHP and the City of Houston shared the common purpose or objective of economic development and promotion.” The Houston contract obligates GHP to perform services for or on behalf of the City of Houston in support of the goals, visions, and objectives of GHP‘s Strategic Plan, which is, generally stated, directed at making the City of Houston attractive to companies and helping Houston companies sell their products and services overseas. Further, the contract obligates GHP to advocate for the City of Houston‘s federal and state legislative agendas and incorporate those agendas into GHP‘s agenda—i.e., GHP must make the City of Houston‘s legislative objectives its own.
GHP counters that it is not “supported” by public funds because there is no agency relationship between it and the City of Houston. We would note that the district court found otherwise: In a letter to the parties explaining its judgment, the district court explained that it found that there was an agency relationship based on several factors, including that GHP was required to replace any of its employees deemed unsatisfactory by the City of Houston or HAS; GHP had to execute a ten-year strategic plan identified by the Houston mayor; confidentiality was required by both parties; GHP had to manage the City of Houston‘s responsibilities with the Permanent Secretariat of the World Energy Cities Partnership;4 and GHP had to coordinate on matters of mutual interest before various federal and state bodies. The trial court also specifically found and concluded in its findings of fact and conclusions of law that, “Under the contract, an agency-type relationship was created between GHP and the City of Houston.” But even if we assume that there is no agency relationship here, this factor is only one element of the second prong of the Kneeland test and, importantly, is described as being in the alternative to a common purpose or objective:
“[A] contract or relationship that involves public funds and that indicates a common purpose or objective or that creates an agency-type relationship between a private entity and a public entity will bring the private entity within . . . the definition of a ‘governmental body.‘”
Kneeland, 850 F.2d at 228 (quoting Tex. Att‘y Gen. No. JM-821) (emphasis added). Here, as described above, the contract and the relationship indicate common purposes. For that reason, we need not address whether there is an agency relationship or GHP‘s complaint that no court or Attorney General opinion has explained how an agency relationship is relevant to our inquiry here. Rather, based on the examples described above, we conclude that GHP‘s relationship with the City of Houston evidences common purposes and objectives sufficient to satisfy the second prong of the Kneeland test.
3. Traditional government services
The last prong of the Kneeland test asks if the private entity‘s relationship with the government requires the private entity to provide services traditionally provided by governmental bodies. Our review of the record shows at least three
Based on our determination that GHP‘s relationship with the City of Houston fails the primary prong of the Kneeland test—i.e., it does not impose a specific and definite obligation to provide a measurable amount of service in exchange for a certain amount of money as would be expected in a typical arms-length contract for services between a vendor and purchaser—in addition to the fact that GHP‘s relationship satisfies the other Kneeland factors, GHP is an entity that is supported, in whole or in part by public funds. As such, we hold that GHP is a “governmental body” for purposes of the disclosure of public information under section 552.003 of the PIA.
We overrule GHP‘s first issue on appeal.
Jurisdiction
In its second issue, argued in the alternative, GHP asserts that we do not have jurisdiction over it in this case because GHP is not “presently” a governmental body under the PIA. Specifically, GHP argues that even if its 2007 and 2008 contracts with the City of Houston made it a “governmental body” under the PIA, those contracts, and thus GHP‘s relationship with the City of Houston, were modified after that time such that it can no longer be considered a “governmental body” under the PIA. As a result, GHP argues, the courts have no jurisdiction to order GHP to disclose its records because the PIA only gives the authority to direct current governmental bodies to disclose public records. Without addressing whether GHP‘s current relationship with the City of Houston makes it a “governmental body” under the PIA, we would simply note that the PIA makes public information available to the public and gives the courts the authority to order the disclosure of that public information. See
Having overruled both of GHP‘s issues on appeal, we affirm the district court‘s judgment.
Dissenting Opinion by Chief Justice JONES.
J. WOODFIN JONES, Chief Justice, dissenting.
I respectfully dissent.
GHP is a private, non-profit entity that acts as a type of “chamber of commerce” to promote economic stability, growth, and public interest in the Houston area. Its principal objectives are to build regional economic prosperity, facilitate business relocations to and expansions in the area, develop and implement international outreach initiatives, and provide strategic planning generally aimed at “promoting and assisting the improvement of commercial, industrial, agricultural, civic, and cultural affairs” of the area. GHP was not founded or created by a public entity, nor does it principally serve one. In fact, its $11.7 million annual budget is overwhelmingly funded by its roughly 2,100 member companies. Nonetheless, the majority concludes that GHP is a “governmental body” subject to forced disclosure of information under the Texas Public Information Act (PIA) merely because GHP executed a contract with the City of Houston to provide—in exchange for monetary compensation—services to the city that are consistent with GHP‘s independently established corporate purpose and principal objectives.1 See
The PIA does not expressly apply to private entities. On the contrary, it can be applied to a private entity, if at all,2 only by virtue of section 552.003(1)(A)(xii), which defines “governmental body” to include “the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds.”
Beyond my reservations about that test, I am equally concerned by the resort to extra-textual analysis in the first instance, because section 552.003(1)(A)(xii) is not ambiguous when considered in the context of the PIA as a whole. Cf. DiFrancesco v. Houston Gen. Ins. Co., 858 S.W.2d 595, 597 (Tex.App.-Texarkana 1993, no writ) (“Such contextual definition renders the word operating and the endorsement unambiguous. As limited by the context, it has but one meaning.“).
Our primary objective in construing statutes is to give effect to the legislature‘s intent, which we seek “first and foremost” in the statutory text. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex.2008). Absent legislative definition, we rely on the plain meaning of the text unless a different meaning is apparent from the context or application of the plain language would lead to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008). “Words and phrases shall be read in context and construed according to the rules of grammar and common usage,”
The term “support” obviously has a variety of dictionary definitions. See Hart, 382 S.W.3d at 591-92. As this Court has recognized, however, dictionaries provide an inadequate test for ambiguity:
To allow the existence of more than one dictionary definition to be the sine qua non of ambiguity would eliminate contextual analysis. . . . Dictionaries define words in the abstract, while courts must determine the meaning of terms in a particular context. . . . Dictionary definitions alone can therefore be accorded little weight in determining ambiguity. The fact that different people reading different dictionary definitions of the same word might reach different interpretations of that word does not make each reading and interpretation reasonable. We agree with those courts holding that such definitions provide no significant help in determining whether a term has two reasonable meanings.
Gulf Metals Indus. v. Chicago Ins. Co., 993 S.W.2d 800, 806 (Tex.App.-Austin 1999, pet. denied). A statute is not ambiguous unless it is susceptible to more than one reasonable meaning. See In re Missouri Pac. R.R. Co., 998 S.W.2d 212, 217 (Tex.1999) (“The language of the statute could support more than one reasonable interpretation and therefore is ambiguous.“). And the context of a term is crucial in determining the reasonableness of its potential meanings. See Gulf Metals, 993 S.W.2d at 806. When considered in light of the PIA‘s purpose, I believe section 552.003(A)(1)(xii) has but one reasonable meaning.
The Texas Legislature enacted the PIA with the express purpose of providing the public “complete information about the affairs of government and the official acts of public officials and employees.”
In any event, even if the statute were ambiguous, I would not apply the test articulated by the majority. The ”Kneeland test” originated in a 1986 federal district court opinion that attempted to distill two patterns of analysis from a handful of Texas Attorney General opinions issued during the preceding decade that relied on ad hoc determinations of fact-specific scenarios in considering whether ostensibly private entities were subject to the disclosure requirements of the PIA‘s predecessor statute. The court summarized the analytical principles it gleaned from those attorney general opinions as follows:
If a contract imposes a specific and definite obligation on the private contractor to provide “a measurable amount of service in exchange for a certain amount of money as would be expected in a typical arms length contract for services between a vendor and purchaser . . .,” the private contractor will not be subject to the Act. [TEX. ATT‘Y GEN.] ORD-302 (1982). Further, the contract must contain no provision which either indicates a common purpose or objective between the purported governmental body and the public entity with which it contracts, or could be construed as constituting an agency-type relationship. TEX. ATT‘Y GEN. ORD-228 (1979).3
Kneeland v. National Collegiate Athletic Assoc., 650 F.Supp. 1047, 1057 (W.D.Tex.1986), rev‘d 850 F.2d 224 (5th Cir.1988). The principles articulated in the quoted passage correlate to the first and second prongs of the test applied by the majority. With these principles in mind, the federal district court in Kneeland determined that the National Collegiate Athletic Association (NCAA) and Southwest Athletic Conference (SWC) were governmental bodies because they received public funds in the
In my opinion, the Kneeland test is ill-conceived, not particularly well thought out, and did not originate from bedrock principles of statutory construction. Some of the concerns I have about the ”Kneeland test” are that (1) the test did not derive from careful consideration of the statute‘s language or purpose but instead was derived by amalgamating a hodgepodge of ad hoc administrative conclusions synthesized through judicial gloss into a test of questionable meaning; (2) in that vein, the phrase “agency-type relationship” is an invention of the federal district court that remains undefined in any measurable sense by the attorney general; (3) although it may be a relatively simple matter to trace and correlate payments of government dollars for “a measurable amount” of tangible deliverables, the same cannot be said of payments for intangible services, which often are provided with minimum restrictions or even guidelines—the services of attorneys and lobbyists come to mind—yet the ”Kneeland test” places the burden on the service provider to prove an indeterminate level of specificity; and (4) the test gives too much weight to commonality of purpose or objective without relating the significance of that circumstance to the statute‘s purposes.
Although this Court has acknowledged that the legislature did not intend to subject every entity receiving government payments to the PIA‘s requirements, see Hart, 382 S.W.3d at 592, the majority here applies a test that is so nebulous in its meaning and scope that it can easily be used to reach information about which the public has no inherent or legitimate right to know.
Read in light of its declaration of purpose and legislative history, the Texas Open Records Act [the predecessor to
the PIA] does not apply to purely private entities. Section 2(1)(F) [the predecessor to section 552.003(1)(A)(xii)] of the Act comprehends that quasi-governmental agencies or operations will be bound by the Act‘s broad disclosure requirements. Unfortunately, in a series of opinions which reflect a careless approach to statutory construction, two attorneys general have interpreted section 2(1)(F) to include within the scope of the Act any private entity which has received public funds for its support. These opinions are purportedly based upon a rule of liberal construction embodied in the Open Records Act. Such a rule, however, has never allowed statutory interpretations that are not reasonably consistent with legislative intent.
Byron C. Keeling, Note, Attempting to Keep the Tablets Undisclosed: Susceptibility of Private Entities to the Texas Open Records Act, 41 Baylor L.Rev. 203, 227 (1989).
Fundamentally, I believe section 552.003(1)(A)(xii) of the PIA, including the term “supported,” is not ambiguous; within the context of the PIA, a private company that receives payment for services rendered under a bona fide government contract is not being “supported by” public funds. Accordingly, I would not defer to the attorney general‘s interpretation of that provision. Instead, applying the only reasonable interpretation of the term in context, I would conclude that GHP is not “supported by” the City of Houston, is therefore not a governmental body, and thus is not subject to disclosure of the requested information under the PIA. Because the majority concludes otherwise, I respectfully dissent.
No. 08-12-00022-CV.
Court of Appeals of Texas, El Paso.
Feb. 6, 2013.