3rd Court reverses years of AG opinions; now holds attorney/client privilege is confidential as a matter of law and an inherently compelling reason to preclude disclosure under PIA

Greg Abbott, Attorney General of the State of Texas v. City of Dallas, 03-13-00686-CV (Tex. App. – Austin December 23, 2014)

This is a Public Information Act (“PIA”) lawsuit where the Austin Court of Appeals affirmed the trial court order allowing the withholding of attorney/client privileged information under the Act. The biggest part of this holding (in my opinion) is the ruling that the attorney/client privilege is an inherently compelling reason to withhold information should the entity miss a PIA deadline.

The City received a PIA request from Perkins for information pertaining to the operation of a landfill owned and operated by the City. The City sought to withhold some of the information as constituting attorney/client privileged information under Tex. Gov’t  Code §§552.101 (confidential as a matter of law) and 107 (attorney-client information). AG did not dispute that the information at issue was protected by the attorney-client privilege but concluded that (1) the attorney-client privilege may not be asserted under §552.101 and (2) although the privilege may be asserted under §552.107(1), that section is discretionary and may be waived by failing to request an opinion within ten business days. It is undisputed in the opinion the City failed to meet the deadline. The City sued and the trial court granted the City’s summary judgment motion which the AG appeals.

The AG has long opined the attorney/client privilege can never fall under §552.101 as being confidential because it can be waived.  However, the Austin Court of Appeals disagreed. After examining various Texas Supreme Court dicta and cases interpreting “other laws” which make information confidential, it concluded that §552.101 can apply to the attorney/client privilege and the Texas Rules of Civil Procedure and the Texas Rules of Evidence apply.  Information which is confidential as a matter of law equates to a “compelling” reason to allow withholding the information in the event an entity fails to timely request an opinion. The court explained this reasoning follows the long held importance and safeguards in place to preserve the attorney/client privilege. The court did note that the attorney/client privilege can be voluntarily waived and in such a case, it would no longer have the protection of §552.101.  However, in this case, the AG agreed the information falls under the attorney/client privilege and no one presented any evidence or argument that the privilege had been voluntarily waived. Therefore, by default, the attorney/client privilege is protected as confidential as a matter of law under §552.101. This is a significant reversal of years of AG opinions regarding the attorney/client privilege.

The dissent asserted the mere fact information falls within the privilege, by itself, is not sufficient to qualify as a compelling reason for non-compliance. Chief Justice Jones would require some additional showing of harm to the entity should the information be released before it would qualify.

If you would like to read this opinion click here. Panel: Chief Justice Jones, Justice Rose and Justice Goodwin.  Opinion by Justice Goodwin.  Dissenting Opinion by Chief Justice Jones can be found here. The attorneys listed for the City are Mr. James B. Pinson and Ms. Barbara Rosenberg.  The attorney listed for the AG is Ms. Rosalind Hunt.