Supreme Court hears dispute over timing and deliberative‑process privilege under Texas Public Information Act

May it please the court — counsel for the Texas Commission on Environmental Quality and the Sierra Club sparred at oral argument over two core questions: when an agency's request for an attorney‑general decision is timely under the Texas Public Information Act and whether the deliberative‑process privilege can shield communications with outside consultants.

The petitioner's side, represented at argument by counsel identified in the record as Mr. Wozdorf and Mr. Wasser, told the court that TCEQ submitted a timely request for an attorney‑general decision and that, even if it were late, the deliberative‑process privilege would justify withholding. Mr. Wasser emphasized three statutory bases for timeliness, including that “business days” under the Act do not include agency‑closed days, that an agency’s clarification request can reset the 10‑business‑day clock under section 552.222(b), and that the mailbox rule in section 552.308(b) supports TCEQ.

The Sierra Club, through counsel William Christian, argued the agency did not satisfy the Act’s strict deadlines and that the agency’s email asking whether the requester wanted confidential information was not a permitted request for clarification or narrowing under the statute — a characterization the Sierra Club said would allow agencies to indefinitely toll the 10‑day deadline by asking routine questions of requesters.

Why it matters: The court’s ruling could reshape how agencies respond to voluminous public‑records requests and when they may delay production to seek an attorney‑general ruling. It may also clarify whether common agency communications with outside contractors or experts can be withheld as privileged internal deliberations.

Timeliness disputes: TCEQ argued the mailbox rule and an agency‑closure interpretation of “business days” entitled it to treat July 5 as a non‑business day and to regard its July 17 submission as timely. TCEQ also contended that its request to Sierra Club asking whether it wanted confidential information was a permissible clarification or narrowing that restarted the 10‑day clock. Opposing counsel said that routine questions of that kind are not the species of clarification the statute contemplates and pointed to the city of Dallas line of cases that limit when an agency can restart the clock.

Deliberative‑process privilege: TCEQ urged the court to treat communications with third‑party contractors and experts as potentially privileged when they are predecisional and deliberative. Sierra Club urged a narrower rule: communications with outside parties ordinarily are not cloaked by the privilege and disclosure to third parties can waive protection much as it does under attorney‑client privilege. The court pressed the parties on who must present which evidence to the attorney general and on whether the attorney general needed the agency’s affidavits before issuing an opinion.

Record and procedural issues: Petitioners noted affidavits and an interagency‑mail affidavit in the summary‑judgment record; opponents pointed out that much of that material was not before the attorney general when the office issued its opinion and that the statute and Open Records Division practice both require strict adherence to procedural deadlines.

Ending: The court took no immediate ruling at argument. The case centers on statutory timing rules, the scope of agency authority to query requesters, and the circumstances under which internal deliberations and outside consultant communications may be withheld under a qualified privilege.