I have a PIA request made by the Dallas Morning News. To make a long story short, we wrote requesting an AG's ruling sending timely the 10 day letter and 15 day brief with representative samples. We also sent the requester a cost letter. The requester took no action regarding the cost letter. We advised the AG the request had been withdrawn by operation of law under section 552.2615(b). The AG now asserts they are proceeding to rule on the request since our cost letter did not state a less expensive alternative. We assert there is none and no such statement in the letter was needed.

Have any of you had a situation where the requester failed to respond to a cost letter, yet the AG declined to return the submitted materials and proceeded to rule on a request? If you have, did you challenge the AG and, if so, how?

The AG's office interprets the cost rules hypertechnically. And to a certain extent it's required to. But, based on your representation of the facts - that there was no less-expensive alternative, I think you may have landed within the overly hypertechnical zone, which I know from personal experience happens from time to time. You might try calling Hadassah Schlosss at the AG's office and ask her to reconsider her decision in light of the facts you discussed here. Otherwise, you may have to sue the agency.

I agree with Daniel, with the following observations:

(1) I'm not sure that a reviewing court would agree that the Attorney General is being unreasonably hyper-technical. If you're trying to extinguish the request by claiming that the Dallas News's request is withdrawn by operation of law, the AG is going to hold you to the letter of the law.

(2) Without knowing what was asked for and what is available, it's hard to second-guess either you or the AG regarding the availability of alternative less costly methods of viewing the records. The more interesting question is how the AG is in a position to second-guess your conclusion, unless they are taking the position that there is always a less costly alternative. The "if" clause in Section 552.2615 forecloses that position, however.

(3) Finally, I'm not sure how you litigate this issue. Would you file a declaratory judgment proceeding as to the status of the request and the AG's authority to issue the opinion, and seek an injunction ordering the AG not to render the opinion? If so, I guess you'd have to get a TRO pretty quickly by showing that you complied with 552.2615 and that the AG now has nothing to rule upon. Would you have to establish irreparable injury, however, to get the TRO and prevent the AG from mooting the controversy by issuing the opinion? If so, what would the irreparable injury be?