13th Court of Appeals holds attorney/client privilege is confidential as a matter of law under PIA and a compelling reason to justify non-disclosure

CITY OF DALLAS v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS, 13-13-00397-CV (Tex. App. – Corpus Christi, February 12, 2015).

This is a Public Information Act (“PIA”) case involving the attorney/client privilege and the City’s alleged failure to timely file a request with the Attorney General under the PIA. As part of a docketing control order from the Texas Supreme Court, the case was transferred to the Corpus Christi Court of Appeals.

The City of Dallas received a PIA request which sought, among other things, all communications regarding a local hotel. Some of the information contained attorney/client privileged communications which the City sought to exempt from PIA release under Tex. Gov. Code §§ 552.101 and 107. However, the request for an AG opinion was not timely sent within 10 business days so the AG determined the privileged communications must be released. The AG opinion did not address the City’s claim the information constituted information which was confidential as a matter of law. The City filed suit under the PIA. The trial court granted, in part, the City’s motion for summary judgment holding the information was attorney/client privilege information, but did not address whether it was a compelling reason to withhold the information. It denied the rest of the City’s MSJ and granted most of the AG’s MSJ. The City appealed.

The court first noted the striking resemblance of the case to Abbott v. City of Dallas, No. 03-13-00686-CV, 2014 WL 7466736 (Tex. App.—Austin Dec. 23, 2014, no pet. h.) (summarized here) where the Austin Court of Appeals recently held the attorney/client privilege could be raised under §552.101 as information made confidential as a matter of law, instead of the overly restrictive interpretation by the AG that the privilege is discretionary and can only be raised in §552.107. The panel found the Abbott case compelling and adopted its reasoning. Since §552.101 is a mandatory section for non-disclosure, the City has demonstrated a compelling reason to justify non-release, despite the failure to follow the procedural elements of the PIA. The Court of Appeals then reversed the award of attorney’s fees to the AG. The case was reversed and rendered in favor of the City.

If you would like to read this opinion click here. Panel: Justice Garza, Justice Perkes and Justice Longoria. Memorandum Opinion by Justice Garza. The attorneys for the City of Dallas are listed as Barbara Elaine Rosenberg and James B. Pinson.  The attorney for the Attorney General is listed as Rosalind L. Hunt. If you wish to view the attorney page listing amici click here.