Sierra Club intervenes in open records lawsuit against Texas Attorney General

Editor's note: This story has been updated with comment from the Texas Commission on Environmental Quality

The Sierra Club on Wednesday intervened in a lawsuit that the Texas Commission on Environmental Quality filed against the Texas Attorney General's Office in October over an open records ruling.

In July, weeks after the TCEQ proposed increasing the acceptable limit on air emissions of a toxic gas known as ethylene oxide, Earthjustice submitted an open records request to the commission on behalf of the Sierra Club for records related to how the commission went about devising the rule. Instead of releasing them, TCEQ requested a decision from the Attorney General's office, which ruled in favor of the environmental groups in September.

TCEQ asked the attorney general to reconsider its opinion and sued the office on Oct. 4, arguing that it didn't have to release the documents under a provision of state law that can allow public entities to withhold records related to internal policy deliberations. The lawsuit is still pending.

Neil Carman, clean air director for the Lone Star Chapter of the Sierra Club, said the group decided to intervene because "it's the only way to ensure that we get access to the TCEQ's ethylene oxide documents."

He said TCEQ's decision to sue the attorney general suggests the agency is "hiding significant details." And he noted that the open records request covered communications to and from TCEQ's chief toxicologist Michael Honeycutt, who also chairs the Science Advisory Board of the U.S. Environmental Protection Agency, which is pursuing a similar rule to relax restrictions on ethylene oxide emissions.

In a statement, TCEQ spokesperson Andrew Keese said, "There are several documents that clearly fall within exception to disclosure under the Texas Public Information Act, but the Texas Attorney General never ruled on the merits."

"The only way to obtain a decision on the merits and address what TCEQ believes is an erroneous letter ruling is to litigate the matter," he said.

The Attorney General's office didn't respond to a request for comment.

Media lawyer Joseph Larsen, a member of the Freedom of Information Foundation of Texas, said state law dictates that the only way governmental entities can avoid complying with an Attorney General's open records ruling is to sue the office.

While "this causes what one might think of as a conflict of interest" because the attorney general typically represents TCEQ in legal proceedings, he said "they build a 'Chinese wall' to restrict the transmission of information between the two branches of the AG involved in the litigation."

And Larsen said governmental entities frequently sue the attorney general.

"Where the AG orders release of potentially contentious information like that at issue here, it is almost sure to happen," he said.