Preparing for a Wave of Citizen Suits in Texas – Ten Tips for Protecting Sensitive Information from Disclosure Under the Texas Public Information Act

As earlier reported, companies should expect environmental non-governmental organizations (eNGOs) to file a barrage of citizen suits to supplement the rollback of U.S. Environmental Protection Agency (EPA) enforcement cases under the Trump administration. eNGOs typically obtain facility information (permitting, operations, compliance, and enforcement records) for their Notices of Intent to sue and lawsuits from public records your company has submitted to a government agency. Members of the public can access these records through sunshine statutes such as the federal Freedom of Information Act (FOIA). Companies should develop strategies for defending against the release of confidential information under FOIA.

State environmental agencies often house far more permitting and compliance documents than EPA, and this information is subject to public disclosure through state FOIA analogs that can include significant differences from the federal FOIA. In light of the many industries located in Texas and the likelihood that eNGOs will view Texas as a target-rich environment for their cases, here are some practical tips for objecting to Texas Public Information Act (TPIA) requests that are submitted to the Texas Commission on Environmental Quality (TCEQ) and identifying of a few key areas of difference from FOIA. Although we refer to TCEQ in the paragraphs below, the tips we provide apply to information submitted to all Texas governmental bodies.

1. Submit Sensitive Information Only When Absolutely Necessary.

The TPIA applies only to information that is in the actual possession of TCEQ. To avoid the possibility of its public release, submit confidential information to TCEQ only when required. If permitted, consider whether to verbally convey highly sensitive information that is not legally required to be submitted in writing during meetings and without providing hard copies that might become subject to a TPIA request. 

2. Clearly Mark Sensitive Information, and Consider Submitting Such Information in Hard Copy, Even When an Electronic Form Is Provided.

TCEQ policy is to treat all information not marked confidential or subject to another TPIA exception as public information. The Agency places documents in its confidential files based on whether they have been marked confidential and places all other documents in its publicly-available files. Accordingly, it is important to mark all pages on which sensitive information appears as confidential or otherwise excepted from TPIA disclosure. Submit the information behind a cover letter stating that sensitive information is enclosed. Confirm whether sensitive information submitted electronically will be managed as confidential. If an electronic form does not clearly state that the information provided will be treated as confidential, clearly mark each page containing sensitive information or submit the information separately in hard copy.

3. Decisions about the Applicability of TPIA Disclosure Exceptions Are Made by the Office of the Attorney General of Texas.

TCEQ must release requested information within ten business days from receiving a request unless the TPIA excepts the information from disclosure. If TCEQ believes any responsive information is subject to an exception, it must request an opinion from the Texas Attorney General (OAG). This is distinct from FOIA, for which confidentiality determinations (and defenses) are referred to the EPA Office of General Counsel.

4. Defend Your Information Within the Ten-Day Deadline – Extensions are Rare.

TCEQ must notify both the requestor and the company that submitted the confidential information that it has requested an opinion from the OAG. A company will have an opportunity to defend the release of its information under the statutory exceptions to disclosure. Take this opportunity. Failure to defend your information will result in a presumption that TCEQ should release the information. Keep in mind that TCEQ must also provide your response to the requestor. The defense should not include the actual information subject to disclosure or describe confidential aspects of the information in such a way that its confidentiality is inadvertently waived by disclosing the information in your defense. Create and provide with your response a confidential and non-confidential exhibit identifying the specific information that should be excepted from disclosure. The deadline for objecting is ten business days after the date you receive notice. Ten business days is not much time to prepare and submit your written case, and TCEQ very rarely grants extensions of that deadline. 

5. Defend the Confidentiality of the Information Precisely -- Page by Page, Paragraph by Paragraph. 

The OAG expects a company to defend the application of an exception to specific information – on each specific page and each paragraph in a document. (This process will be easier if the Company prepares an internal log tracking what confidential information it has submitted and on what basis; see our FOIA strategies for how to submit confidential information to an agency.) Consider Bates numbering the information to precisely delineate which exceptions apply to which sections of a document. While only a prima facie showing is necessary, blanket and conclusory claims about a broad set of documents will not suffice.

6. TPIA Exceptions to Disclosure Are Different Than FOIA Exceptions.

While TPIA is modeled after FOIA, the statutory exceptions to public disclosure are not identical; some are broader and some are narrower. Commonly-claimed TPIA exceptions from disclosure of third-party information include trade secrets, commercial and financial information, proprietary information, and information confidential by law. The term “trade secret” covers a broad range of information beyond the strict legal definition. The TPIA also recognizes confidentiality protections “by law,” which can be an important catch-all. For example, the Texas Homeland Security Act has protections for “critical infrastructure” that make confidential by law certain information about facilities that qualify as critical infrastructure. It is possible that information that will be confidential under TPIA will not be confidential under FOIA.

7. The TPIA Litigation Exception Is Narrowly Applied.

Per interpretive OAG opinions and caselaw, the litigation exception is viewed as a limited exception to prevent discovery abuse between litigants only. For instance, information provided during settlement negotiations with the OAG for enforcement matters is not protected from disclosure to third parties.

8. Monitor for Faxes from OAG. 

During its review, the OAG can seek additional information. In seeking that information, OAG might use facsimile correspondence with very fast deadlines (as few as five days). This somewhat outdated approach can be unexpected for companies accustomed to online communication or delivery of hard copies. Ensure your legal and compliance teams check for faxes when a TPIA request is pending. 

9. Use the OAG Handbook.

The OAG has prepared and regularly updates a useful guidance handbook: OAG’s TPIA Handbook. The Handbook includes key information about the exceptions to release available per the TPIA, links to key OAG general opinions, and the TPIA and implementing rules. 

10. Be Prepared for Appeals.

The OAG has up to 55 business days to issue a decision after receiving a request from TCEQ. TCEQ then has 30 days to either produce the information, notify the requester of a need for additional time, or appeal for judicial review in Travis County district court. Either the requestor or the company may file a suit for declaratory judgment under the Uniform Declaratory Judgments Act, asking a court to hold that an exception does or does not apply. The requestor may also file a writ of mandamus to compel the release of information when the OAG rules that it is not subject to disclosure.

Beveridge & Diamond focuses on environmental and natural resource law as applied to business strategy, regulatory compliance, transactions and project development, litigation, and dispute resolution. We help clients around the world resolve environmental and sustainability issues relating to facilities, products, and operations.