Austin Court of Appeals remands PIA case to consider compelling nature of attorney/client privilege in release of information

Stephen B. Tyler, Criminal District Attorney Victoria County, Texas v. Ken Paxton, Attorney General of Texas, 03-12-00747-CV (Tex. App. – Austin, January 28, 2015).

This is a Public Information Act (“PIA”) case where the Victoria County District Attorney (“DA” or “Tyler”) attempted to exempt documents from disclosure. The Austin Court of Appeals remanded the case for consideration of the compelling nature of the attorney/client privilege in relation to the documents.

Tyler’s office received a request under the PIA for information relating to services rendered to the DA’s office by specific attorneys. Tyler’s officer asserts it mailed a request to the AG for an opinion of whether certain information is protected by the attorney/client privilege and work product but for “reasons unknown” the postmark was after the 10 day deadline to mail in a request. The AG’s opinion letter agreed the attorney/client privilege applied but since Tyler’s office did not mail the letter timely, it waived the privilege. The AG did not consider the waiver a compelling reason to except the documents from disclosure. Tyler sued the AG under the PIA process. Both sides submitted opposing summary judgments. The trial court denied Tyler’s motion and granted the AG’s motion. Tyler appealed.

The court first analyzed Tyler’s request for an implied “good faith” defense for the failure to comply with the deadline requirements and that such is not a knowing waiver of the privilege. The court held the plain language of the PIA does not include a good faith defense for failing to timely mail and they declined to imply one.  As to the nature of the attorney/client privilege and whether it and the work product privilege are compelling reasons to withhold information despite the missed deadline, Tyler did not raise those issues in his summary judgment motion. However, the court went on to say that “[t]he DA’s failure to affirmatively demonstrate a compelling reason… does not necessarily establish that the trial court was correct in granting the AG’s motion for summary judgment.”  The AG failed to establish in its motion that the reason was not compelling or could not be compelling. Citing to the court’s recent holding in Abbott v. City of Dallas, ___ S.W.3d ___, No. 03-13-00686-CV (Tex. App. —Austin Dec. 23, 2014, no pet. h) (summarized here), the court held the attorney/client privilege could qualify as a compelling reason to withhold the information even if the deadline is missed. As a result, the court held neither party is entitled to summary judgment and remanded the case to consider the issue of the compelling nature of the information.

If you would like to read this opinion click here. Panel: Chief Justice Rose, Justice Goodwin and Justice Field. Memorandum Opinion by Justice Goodwin. The attorney listed for Tyler is Mr. Brendan W. Guy.  The attorney listed for the AG is Ms. Rosalind L. Hunt.