By Dave Montgomery
For 24 days every autumn, throngs of visitors stream into the State Fair of Texas in Dallas for shows, music, exhibits, livestock judging, carnival rides and gastronomic delights such as corny dogs and fried butter. Millions worldwide know it as the home of Big Tex, the fair’s 55-foot animatronic cowboy.
But for more than two years, the 131-year-old Dallas institution has attracted attention for another reason. It has been at the center of a meandering legal battle involving the Texas Public Information Act, long regarded as a national gold standard for giving citizens access to the inner-workings of their government.
Austin attorney Jennifer Riggs, who is seeking years of records from the fair on behalf of an unnamed third party, maintains that the fair receives financial support from the City of Dallas and is therefore a government entity subject to disclosure requirements under the Public Information Act. The State Fair’s attorneys say the non-profit institution, though it has a contract with Dallas, is not financially supported by the city and does not have to reveal its records.
The fair responded to Riggs’ 2015 records request by suing her law firm instead of following standard procedure required under the TPIA of governmental entities – seeking a ruling by the attorney general’s office, if the entity wishes to withhold records. The law prohibits government entities from suing requestors, but the fair maintained that it is not covered by the prohibition, citing its contention that the fair is a non-profit and not part of government.
Riggs prevailed in an early round in 2015 when State District Judge Staci Williams granted her motion to dismiss the suit and ordered the fair to pay a total of $77,174 in attorney fees and sanctions. The ruling was overturned by an appeals court just over a year later, but the fair served notice of a nonsuit, effectively abandoning its claims, while leaving the door open to future action.
In December of 2016, Riggs filed a lawsuit against the fair to seek a court declaration that the institution is subject to the open records act. But on Oct. 18 of this year, while the fair was still in its 2017 run, State District Judge Tonya Parker granted the fair’s motion to dismiss the suit.
The judge also awarded $208,206 to the fair in attorney’s fees, expenses and sanctions, as well as a total of $90,000 in “conditional” appellate attorney fees if the case reaches arguments in the Texas Supreme Court. The $161,239 that Parker awarded in attorney fees constituted only about a third of the $435,495 sought by the fair.
Riggs, who is being represented in the case by Dallas attorney Julie Pettit, has served notice that she plans to appeal, continuing a legal dispute that could ultimately land in the Texas Supreme Court. Riggs called the latest ruling a “sad day for transparency in open government in Texas” and warned that the case could have a “chilling effect” on citizens who fear the potential of a lawsuit if they seek information from what they believe to be a government entity.
“I know it means that members of the public are going to be hesitant to use the act,” Riggs said in a recent telephone interview. “And I know it means that lawyers are going to be hesitant to file lawsuits to assist people under the open records act.”
State Fair President Mitchell Glieber, in a press release after the ruling, praised the decision, calling it a good outcome for “a senseless lawsuit that was a waste of the court’s time.”
A victory for Riggs, he said, would “have paved the way” for other non-profits to be classified as government entities subject to the “unnecessary burden” of releasing information they contend should stay private.
Glieber contended Riggs’ lawsuit was designed to “harass and further a false narrative about the Fair’s relationship with the City of Dallas.”
The State Fair case is being closely watched by public information advocates, particularly in light of Texas Supreme Court decisions in 2015 that curtailed citizen access to many records related to companies and non-profits doing business with the government.
“It’s a tremendous threat to our democracy,” said Laura Prather, a First Amendment lawyer in the Haynes and Boone firm and co-chair of the legislative committee of the Freedom of Information Foundation of Texas. “We’ve got a situation where a requestor is asking for documents that they believe that a government entity holds. And then they are put on the receiving end of a lawsuit and subjected to the fees from the entity.
“And that fundamentally turns the Texas Public Information Act on its head,” she added. “I’m concerned because we have not in recent history seen very favorable decisions from this Texas Supreme Court when it comes to Texas Public Information Act cases.”
The fair’s suit against Riggs spawned a bill in this year’s Legislature to protect open records requestors from lawsuits, but the proposed Requestor Protection Act, House Bill 4144 by Rep. Chris Paddie, R-Marshall, died in the House Government Transparency and Operation Committee, along with other bills aimed at loosening court-imposed restrictions on public records.
Riggs said she was hired to seek the records from the fair because of her expertise with the public information law. The Austin attorney, who has been in private practice since 1992, was the first chief of the open government division in the Texas Attorney General’s office, serving two years in 1987-89.
Riggs said she is not permitted to identify the requestor, saying only that it “was somebody concerned about retaliation.” The request, according to court documents, encompassed a period of 10 years and covered 61 categories of information on a broad range of information about litigation, employment decisions, assets, investments, vendors and other subjects.
In another key element of the case, both sides have invoked the state’s so-called anti-SLAPP law at varying stages of the legal battle in an effort to convince the courts that they were effectively being subjected to retaliatory legal tactics. Known as the Texas Citizens Participation Act, the law was passed in 2011 to protect citizens and news organizations from “strategic lawsuits against public participation” designed to silence critics’ First Amendment free speech rights.
EDITOR’S NOTE: This article was prepared for and distributed by the non-profit Freedom of Information Foundation of Texas.