## IN THE SUPREME COURT O F TEX AS

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### R A N D A L L 

### K A L L IN E N A N D 

### P A U L 

### K U B O S H 

### , P E T IT IO N E R S 

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v . 

### T H E 

### C IT Y O F 

### H O U S T O N 

### , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F I R S T D I S T R I C T O F T E X A S

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P ER CURIAM

The Texas Public I nformation Act (“PI A”) , Chapter 552 of the Texas Gover nment Code, “g uara ntees acc ess to public information, subject to c erta in e x ceptions.” Tex. Dep’ t Pub. Safety v. Cox Tex. Newspapers, L.P. , 343 S.W .3d 112, 1 1 4 (Tex. 2011). The PI A provides that when a g overnme ntal body rec eives a wr i t t en re q u est for information for which it wishes to claim an exception, it must timely seek a ruling from the Attorney Gene ral if the exception’s applicability to the reque sted information has not previously been deter mined. T E X . G O V ’ T C O D E § 552.301(a) ; see also id

. § 552.301(g ). But the PI A also provides tha t a re questor may sue to compel dis closure of the information. T E X . G O V ’ T C O D E § 552.321(a)

. I n this case , the court of appea ls held that a trial
court lacks subject matter jurisdiction over such a suit until the Attorney Gene ral rules. 414 S.W .3d 815, 820 (Tex. App.—Houston [1s t Dist.] 2013). We disag ree .I nvoking the PI A, Randall Kallinen reque sted information from the City of Houston

reg arding a study of traff

ic light came ras it had commissioned. The City produce d a larg e number of documents but withheld some and timely asked the Attorney Gene ral for an opinion on whether the PI A excepted the withheld information from d i s clos ure. The PI A g ives the Attorney Gene ral forty -five business day s to i s s u e o pinions, though the time can be extended. T E X . G O V ’ T C O D E § 552.306(a)

. But befor e this time elapse d and befor e the Attorney Gene ral ruled, Kallinen sued for

a wr i t o f m an d amus to compel the City to disclose the withheld information. The City moved to abate the lawsuit pending the Attorney Gene ral’ s ru ling, but the Attorney Gene ral closed his file when he was aler

ted to the suit. At the time, the Attorney Gene ral did not interpre t the PI A to require an open rec ords ruling on issues alre ady in litigation. See Tex. Att’y Gen. OR2011-687 (citing Tex. Att’y Gen. OR1990-560 at 3 (dec lining to r ule on sensitive information on the g round the i ssues should be resolved i n the pending Tex as prison litigation), and A & T Consultant s, Inc.

v. Sharp , 904 S.W .2d 668, 671 (Tex. 1995) (noting in dicta that the Attorney Gene ral withdrew his opinion pending litig ation on PI A questions)). The City filed a plea to the jurisdiction, arg uing that the court lacke d jurisdiction over the suit until the Attorney Gene ral ruled. The district court overr uled the plea, g rante d summary judgme nt for Kallinen, order ed disclosure of ma n y of the withheld documents, and awa rded Kallinen $175,664 in attorney

fee s throug h appea l to this Court. The City complied with the order to disclose but appea led the attorney fee awa rd. The parties ag ree that the only basis for the trial court’s jurisdiction is Section 552.321 (a ) o f the PI A. That

2provision, with subsections inserted in brac kets for ease of ref ere nce, conditions the court’s exercise of jurisdiction as follows:

A reque stor or the attorney g ener al may file suit fo r a wr i t of mandamus compelling a g overnme ntal body to make information available for public inspection if the g overnme ntal body [A] ref uses to reque st an attorney g ener al’s decision

. . . or [B] ref uses to supply [1] public information or [2] i n fo rm ation that the attorney g ener al has de termined is public information that is not excepted fr om disclosure. T E X . G O V ’ T C O D E § 552.321(a)

. The parties ag ree that conditions A and B2 do not apply

. The court of appea ls rea soned that condition B1 cannot apply when the g overnme ntal b o dy is challeng ing whether an exception to disclosure applies beca use the information has not y et been deter mined to b e p u b l i c. 414 S.W .3d at 818. Acc epting the City ’s arg ument, the court stated that the Att o rn ey Gene ral must deter

mine whether information i s subject t o disclosure when asked to do so, that he has exclusive jurisdiction to make that d et ermination in the first instance, that the reque stor of information must exhaust all administrative reme dies befor e suing, and that there fore a trial court’s jurisdiction over a reque stor’s suit “only arises afte r the Attorney Gene ral has ruled.” Id. at 818–20. The City ’s position is flawe d in sever al respe cts. First, it equate s information that is public with information t hat has be en dete rmined by the Attorney

Gene ral to be public, so that condition B2 swa llows up condition B1. This violate s a duty of statutory

interpre tation to “g ive ef fec t to all the words of a statute and not trea t any statutory lang uag e as surplusag e if possible.” Chevron Corp. v. Re dmon , 745 S.W .2d 314, 316 (Tex. 1987). Fur ther, the City ’s vie w o f Se c tion 552.321(a) would rele g ate mandamus relief to compelling

a g overnme ntal body to reque st an Attorney Gene ral’s decision and then comply wi t h i t

. The

corr ectne ss of that decision would be unrevie wable. But we have revie wed the Attorney Gene ral’s
3ruling s. See Cox Tex. Newspapers, L.P. , 343 S.W .3d at 113 ; In re City of George town , 53 S.W .3d

328, 329–36 (Tex. 2001). And we have interpre ted PI A exceptions without a ruling by the Attorney Gene ral. See City of Garland v. Dall. M orning News , 22 S.W .3d 351, 358–64 (Tex. 2000) ; A & T Consultant

s, Inc. , 904 S.W .2d at 671, 674–81

. The court of appea ls’ int er p re t ation ignor es these

case s. The City arg ues, and the court of appea ls held, t hat reque stors of information should be require d to exhaust their reme dies in placing disputes befor e the Attorney Gene ral befor e resor ting to the courts. But reque stors have no such reme dies. Whil e the Attorney Gene ral may invite their arg uments, they have no rig ht to reque st or demand a ruling or disclosure from the Attorney Gene ral, and no rig ht to an administrative appe al. See T E X . G O V ’ T C O D E § 552.304. Requestors cannot be require d to finish something they have no rig ht to start. The require ment that a g overnme ntal body seek a ruling from the Attorney Gene ral when withholding reque sted information is a chec k on the g overnme ntal body , not a reme dy for the reque stor to exhaust. And ag ain, the City ’s view of Section 552.321(a) would make the A ttorney Gene ral’s r

uling unr eviewa

ble. The C i t y ar gu es t hat because information is g ener ally “pre sumed to be subj ect to require d public disclosure” when a g overnme ntal body fails to timely reque st a n Attorney Gene ral’s ruling , T E X . G O V ’ T C O D E § 552.302, the information should not be considere d public when a ruling is reque sted. But the premise cannot establish its conver se. One may infer from a g overnme ntal body ’s fa ilure to reque st a ruling that the body is not claiming an exclusion, else it would a dvance its position in compliance with presc ribed proce dures. See T E X . G O V ’ T C O D E § 5 5 2

. 3 0 1

. One

4cannot likewise infer tha t just because a g overnme ntal body proper ly seeks an Attorney Gene ral’s ruling , its ex clusion claim must be corr ect. The Attorney Gene ral advises in an amicus brief that he does not claim exclusive jurisdiction to de cide open rec ords issues. Consistent with t hat position, at the time of the City ’s re quest for a ruling , as noted above, the Attorney Gene ral’s policy was not to rule on issues in litigation. See Tex. Att’y Gen. OR2011-687. I n reve rsing that policy , he does n o t claim the authority to rule without
court re view. A reque stor of information cer tainly has the choice to awa it the Attorney Gene ral’s decision. A g overnme ntal body may decide to rele ase t h e re quested information during the proce ss and on

rec eipt of an adver se opinion from the Attorney Gene ral. Effic iency may counsel patience

. But the g overnme n t al b o d y is entitled to insist on its position to a final ruling , see T E X . G O V ’ T C O D E § 552.324, and a r equestor is not re quired to def er a suit for mandamus. A court may decide , exercising sound discretion, to abate proce eding s to awa it the Attorney Gene ral’s r

uling. The Attorney

Gene ral c hara cter izes it s authority as akin to primary jurisdiction,

a p ru d enti al doctrine that applies when an ag ency is “staff ed with experts trained in handling th e complex problems in the ag ency ’s purview” and there is a benef it to be “der ived from [t he] ag ency [] uniformly interpre ting its laws, rules, and reg ulat i o n s . ” S u b aru of Am., Inc. v. David McD avid Nissan, Inc. , 84 S.W .3d 212, 221 (Tex. 2002). The L eg islature has expressly char g ed the Attorney Gene ral with maintaining “uniformity in the application, opera tion, and interpre tation” of the PI A, T E X . G O V ’ T C O D E § 552.011, and the Offic e of the Attorney Gene ral is experience d in interpre ting and apply ing the subchapte r C e x ceptions. I f the court deter mines that under the circ umstances of

5a particula r case a decision from the Attorney Gene ral befor e adjudication of the merits of disclosure would be benef

icial and any dela y wo u l d not impinge on a reque stor’s rig ht to information, abate ment would be within the cour t’s discretion. The court of appea ls err ed in dismiss ing Kallinen’s suit for wa n t o f j u ri sdiction. Acc ording ly , we g rant the petition for revie w and, without hear ing oral arg ument, reve rse the court of appea ls’ judgme nt and rema nd to that court for further proce eding s in acc ord an ce wi t h this opinion. T E X . R. A P P . P. 59.1.

Opinion issued: March 20, 2015

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