Under PIA, school could reasonably anticipate litigation even though it was given only a “conditional” threat of suit

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Appellant, B. W. B.// Cross-Appellant, Eanes Independent School District v. Appellee, Eanes Independent School District// Cross-Appellee, B. W. B03-16-00710-CV (Tex. App — Austin, January 10, 2018)

This is a Public Information Act (“PIA”) and mandamus action where the Austin Court of Appeals affirmed the order granting in part the school’s motion for summary judgment but denying its plea to the jurisdiction.  BWD’s daughter attended Eanes Independent School District (“EISD”) and was on the soccer team. BWD alleges the coach bullied his daughter and released her private information, thereby violating FERPA, HIPPA, and EISD’s Acceptable Use Guidelines for Technology.  He requested records related to Coach Rebe from EISD. The school sought an AG opinion regarding certain documents.  However, federal regulations do not allow the AG to review certain documents pertaining to student records. The AG deferred to the EISD to determine student record applicability.  The AG then determining the remining records were excepted under the litigation exception of the PIA since BWD had threatened formal complaints under the administrative process against the coach. BWD filed suit to compel the disclosure of the records. The trial court denied EISD’s plea to the jurisdiction but granted, in part, EISD’s summary judgment motion.

The court first held, contrary to EISD’s arguments in its plea, requestors are permitted to sue for mandamus to challenge an AG opinion regarding the release of information. They are not required to accept the AG’s determination of any exceptions. Therefore, the trial court has jurisdiction over this suit. FERPA (the federal statute on school privacy issues) establishes BWD has no standing to challenge EISD’s determination of what is a student record and what is not. Under FERPA a parent has a right to examine those records, and this right trumps the PIA’s litigation exception. Unfortunately, FERPA creates no private right of action. BWD’s course of action is to file a complaint with the federal Department of Education for the right to inspect the records.

For what remains, in order to fall within the litigation exception, the school must have reasonably anticipated litigation at the time of the records request and the withheld information must relate to the anticipated litigation. An isolated threat over the telephone, without more, does not trigger “reasonably anticipated litigation” for an entity. However, when a genuine dispute exists involving the entity, at least one threat of litigation has been presented, and the entity receives communication from an attorney, an entity may reasonably anticipate litigation. Here, BWD sent an email to Coach Rebe and carbon copied four other EISD email addresses addressing the dispute. His attorney contacted the school and stated they intend to file a formal administrative complaint, but they would not file suit if the coach had no further contact with the student. A “conditional” threat of litigation, matched with the other case specific facts, established EISD could reasonably anticipate litigation in order to assert the exception. The documents at issue in this case relate directly to the dispute and the coach. As a result, they can be withheld.

If you would like to read the opinion click here. Panel consists of Chief Justice Rose, Justice Field and Justice Bourland.  Memorandum opinion by Justice Field. The attorneys listed for B.B.W is Brian W. Bishop John J. Hightower. The attorneys listed for the Eanes Independent School District are Jonathan G. Brush and Dylan Farmer.

Austin Court of Appeals holds Medicaid claim information is not protected and potentially subject to disclosure under Public Information Act

 

Ken Paxton, Attorney General of the State of Texas v. Texas Health and Human Services Commission 03-15-00652-CV (Tex.App. – Austin, December 14, 2017)

This is a Public Information Act (“PIA”) lawsuit where the Austin Court of Appeals reversed the granting of a summary judgment in favor of the Commission and remanded the matter back to the trial court.

Texas Health and Human Services Commission (“HHSC”) received a PIA request for healthcare-service providers’ Medicaid claims for reimbursement.  HHSC asserted the names of, or any information concerning, persons applying for or receiving Medicaid assistance is confidential. The AG issued an opinion the information must be released because it does not identify the individuals from whose claims the information is derived and, thus, is not “any information concerning” Medicaid applicants or recipients.  After opposing summary judgments, the trial court ruled for HHSC that the information was excepted from disclosure. The AG appealed.

HHSC is charged with supervising the administration and operation of the Texas Medicaid program.  The specific Medicaid-claim information requested was “date of service; procedure code; claim status; billed amount; paid amount; provider name and ID; provider codes; and billing entity.” The AG agreed the claim numbers were protected, but the remainder of the information must be released. Tex. Hum. Res. Code § 12.003 states the names and “any information concerning persons applying for or receiving [Medicaid] assistance” are confidential. The statutory construction in this case centered on the phrase “any information concerning” Medicaid recipients. HHSC asserts that since the claim payment information is derived from individual patient treatments, it qualifies as “any information concerning” the recipient. However, the panel disagreed. The fact the information requested is necessarily taken from individuals’ Medicaid files is not dispositive. The court analyzed the sentence structure, but held the requirement it read the statute liberally to promote disclosure should win out.  Section 12.003, therefore, expresses an intent to shield only that information in Medicaid records that names or refers to Medicaid applicants or recipients—i.e., identifies the applicants or recipients, discloses their personal information, or could be used to identify them. However, the court held the AG did not negate the fact the information could be used to derive the identity of a recipient. Therefore, it remanded the case.

Jusice Bourland dissented noting the phrase “any information concerning” is broad and the principles of statutory construction as well as the plain meaning favor a board reading. Courts should not ignore the plain language of the text in favor of liberal PIA construction. Her dissent can be found here.

If you would like to read the majority opinion click here. Panel consists of Chief Justices Rose, Pemberton, and Bourland. Memorandum Opinion by Justice Rose. To see the attorneys listed for the Appellants and Appellee click here.

 

 

Posted in PIA

Texas Supreme Court holds attorney/client privilege, by itself, is a compelling reason not to release under the PIA even if an entity blows a deadline

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KEN PAXTON, ATTORNEY GENERAL OF TEXAS v. CITY OF DALLAS; from Travis County; 3rd Court of Appeals District, No. 15-0073 (Tex. February 3,2017)

This is a Texas Public Information Act (“PIA”) case where the Texas Supreme Court holds the attorney/client privilege, in and of itself, is a compelling reason to prevent disclosure under the PIA, even if an entity untimely requests an AG opinion. Case of first impression, long opinion, so long summary.

The City of Dallas received two PIA requests for information, but failed to timely notify the Texas Attorney General within the ten-business day deadline of its intent to seek an AG opinion. The City did seek an opinion and asserted the documents are protected by the attorney/client privilege. The AG determined that since the City failed to timely request an opinion, it waived the privilege and all documents must be released. When an entity fails to timely request an opinion, the documents are presumed public unless there is a compelling reason to withhold the information. The AG did not consider the privilege a compelling reason. The City filed suit under the PIA to obtain judicial rulings but received conflicting results at the trial courts. The City and AG appealed respectively. At the different court of appeals levels, both courts held the privilege was a compelling reason to withhold the information. Summaries found here and here. The AG filed a petition for review for both cases.

The Court went into great detail and history (39 pages worth) discussing the balance between the attorney/client privilege (which is for the public’s benefit for governmental advice) and the public’s right to information (which is also for the public’s benefit). It noted the AG has determined through agency precedent that the mere ability to waive the attorney-client privilege automatically and categorically precludes the privilege from constituting a compelling reason even when the privilege has not actually been waived. The Court rejected this argument and held “[b]ecause failing to meet the PIA’s deadline to assert a statutory exception to disclosure does not, in and of itself, constitute waiver of the attorney-client privilege, requested information does not automatically lose its confidential status.” It further rejected the AG’s interpretation for all exceptions under the PIA, “that something more is always required to rebut the presumption that arises from a governmental body’s failure to timely request an attorney general decision.”  The Court held the certain exceptions (not all but some) can be compelling reasons in their own right. The AG’s interpretation alters the plain language of the PIA. “To require public disclosure of confidential attorney-client communications as an automatic—and irremediable—sanction for missing a statutory deadline is not necessary to achieve the PIA’s objective of an open government and would be a jurisprudential course fraught with peril.”  Finally, Justice Guzman puts an accurate but humorous summary on the entire thing by writing “[r]obotic perfection by a governmental body’s public information officer is a statutory ideal, not an absolute requirement. To err is human, but to conduct a City’s legal affairs without the occasional error would require divinity.”

The dissent writes for 37 pages but essentially states the attorney/client privilege, by itself, is not enough to overcome the presumption of openness which attaches when the PIA deadlines are not met. The dissent would require an additional showing of a compelling reason for the non-release.

If you would like to read this opinion click here. Justice Guzman delivered the opinion of the court in which Chief Justice Hecht, Justice Green, Justice Willett, Justice Lehrmann, Justice Devine, and Justice Brown joined. To see the Dissenting opinion delivered by Justice Boyd, in which Justice Johnson joined click here.   To see the Representatives for the parties, click here for the Docket Page.

Posted in PIA

Austin Court of Appeals grants TABC plea to the jurisdiction in PIA lawsuit by requestor

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McLane Company, Inc. v. Texas Alcoholic Beverage Commission, et al., No.03-16-00415-CV (Tex. App. – Austin, February 1, 2017).

This is a Texas Public Information Act (“PIA”) request lawsuit where the Austin Court of Appeals affirmed the granting of several pleas to the jurisdiction by a state official and the Texas Alcoholic Beverage Commission (“TABC”).

In 2015 McLane Company, Inc. (“McLane”) submitted a PIA request to the TABC. The TABC sought an opinion from the Texas Attorney General’s Office under the PIA procedures. The AG determined most of the information must be released, but allowed two exceptions. The TABC filed suit against the AG and McLane intervened. McLane seeks a writ of mandamus ordering TABC to produce the requested information. McLane also seeks declarations under the Texas Uniform Declaratory Judgments Act (“UDJA”). It further sued Sherry Cook, TABC’s Chief Administrative Officer and Officer for Public Information asserting her failure to release the information as an ultra-vires activity. TABC filed a plea to the jurisdiction contending sovereign immunity deprived the trial court of jurisdiction over McLane’s UDJA and ultra-vires claims. Cook also filed a plea to the jurisdiction asserting that sovereign immunity barred McLane’s suit against her. The trial court granted the pleas and McLane appealed.

The Texas Supreme Court has explained that “the UDJA does not enlarge the trial court’s jurisdiction but is ‘merely a procedural device for deciding cases already within a court’s jurisdiction.’” Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) (per curiam).  To the extent McLane’s petition seeks the trial court to order “the PIA requires the TABC and Cook to promptly search for and produce” responsive documents, and the method in which they are to search, such a suit falls outside of the confines of the declaratory judgment action authorized by the PIA. Instead, such relief seeks a declaration of McLane’s rights under the statute.  As articulated in the Sefzik case, immunity is not waived under the UDJA except where the invalidity of an ordinance or statute is at play. The UDJA does not waive sovereign immunity for “bare statutory construction” claims. As a result, the UDJA claims raised in the plea were properly dismissed. Further, while sovereign immunity does not bar a true ultra-vires claim against a public official, McLane’s claims stem from the belief Cook was not performing a reasonably comprehensive search. The PIA does not authorize a declaration as to the search performed. Further, even if a proper ultra-vires claim was factually pled, the redundant remedies doctrine precludes McLane pursuing it.  The legislature created an explicit waiver of sovereign immunity in the PIA, and neither TABC nor Cook has challenged McLane’s right to intervene in the underlying PIA suit. McLane has a right of potential recovery under the PIA and therefore cannot sue for the same thing under an ultra-vires theory. As a result, the trial court property granted the plea.

If you would like to read this opinion click here. The Panel Includes Chief Justice Rose, Justice Field, and Justice Bourland. Justice Field delivered the opinion of the court. Click here for the docket page to see the representatives for the parties.

Austin Court of Appeals holds OIG investigation is open to the public since it did not concern health care fraud

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Ken Paxton, Attorney General of the State of Texas v. Texas Department of State Health Services, 03-14-00594-CV (Tex. App— Austin, August 31, 2016)

This is a Public Information Act (“PIA”) case where the Austin Court of Appeals reversed the granting of a summary judgment for the Department of State Health Services (“DSHS”).

Iris, a Department employee, filed a complaint against Angel, another Department employee. The OIG investigated the complaint but found that the allegations of misconduct against Angel could not be substantiated. Both Iris and Angel filed open-records. DSHS sought to withhold information collected by the Office of the Inspector General (OIG) during the investigation under a Government Code provision that makes information and materials “compiled by the [OIG] in connection with an audit or investigation” confidential and not subject to disclosure under the PIA.  The AG noted this provision is found in the OIG’s enabling provisions regarding fraud and abuse and the underlying OIG investigation did not concern “Medicaid or other health and human services fraud, abuse, or overcharges.”  After opposing summary judgments, the trial court ruled for DSHS. The AG appealed.

The Department maintains that, on its face, the text of section 531.1021(g) places no limits on or requirements for the subject matter of an OIG audit or investigation to which confidentiality attaches. But such an interpretation fails when the provision is considered in the context of the OIG’s enabling provisions. When considered in its proper context, the Legislature intended for confidentiality to extend only to those OIG audits and investigations concerning “fraud, waste, and abuse in the provision and delivery of all health and human services in the state.” It does not apply to just any subject investigation. The Department also suggests that not protecting all OIG investigations would impair the OIG’s ability to obtain sensitive information and carry out its investigative responsibilities, and that persons and companies would feel insecure in reporting to the OIG.  However, information which does relate to fraud in health care services is still confidential. And the other difficulties described by the DSHS are no different than those experienced by all other governmental entities faced with public-information requests.  The Legislature has determined that, unless the information requested is excepted from disclosure, governmental entities must release any such records. As a final point, the Department points out that previous Attorney General letter rulings construed section 531.1021(g) to grant confidentiality to all OIG audits and investigations regardless of the subject matter.  Attorney General concedes that he has applied this section differently in the past but maintains that his position since 2012 has been that section 531.1021(g) does not apply unless it is a health service fraud or abuse situation. The court simply noted that its decision is based on the statutory language, not the AG’s prior decisions. The court reversed the summary judgment for DSHS and rendered judgment for the AG.

If you would like to read this opinion click here.  The panel includes Chief Justice Rose and Justice Goodwin. Chief Justice Rose delivered the opinion of the court. Attorney for the Appellant: Mr. Matthew R. Entsminger.  Attorney for the Appellee: Ms. Ann Hartley.

Posted in PIA

Austin Court holds redacted video of traffic stop subject to release under PIA

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Randy Travis v. Texas Department of Public Safety and the Texas Attorney General, 03-14-00314-CV (Tex. App— Austin, August 18,2016)

This is a Public Information Act case where the Austin Court of Appeals affirmed the release of police video information.

Randy Travis seeks to withhold from public disclosure a redacted version of the dashboard recording of his August 2012 arrest for driving while intoxicated. DPS received a PIA request and sought an opinion to withhold part or all of the recording (along with other documents).  The Attorney General determined that after certain redactions were made, the recording was subject to release. Travis sued to prevent the release. The trial court granted summary judgment for the Attorney General. Travis appealed.

First the court rejected Travis’ argument that video have a greater ability to harm so a different standard should be applied to their release. Next, Travis argued that since the state agreed in the protective order in his criminal case that Travis had a common law privacy interest preventing the release of the video, it was estopped from arguing differently now.  The court noted the interest in the redacted video in the PIA case is now different than the unredacted version in the criminal matter. Further, since the protective order in the criminal case was dissolved, there is not final judgment on that subject which would prevent an adjudication in the PIA matter. Next, Travis put himself into public view by driving naked while drunk. Anyone on the road could have seen him, so he has no expectation of privacy in the video. Finally, nothing in the redacted version indicates any medical or prescription information.  So, since the required release is only for the redacted version, no privacy issues remain to prohibit its release. The summary judgment order is affirmed.

If you would like to read this opinion click here. The panel includes Chief Justice Rose, Justice Goodwin, and Justice Bourland. Chief Justice Rose delivered the opinion of the court.  Attorneys for the Appellant: Mr. Martin J. Cirkiel, Lawrence J. Friedman, and Mr. John Nix. Attorney for the Texas Department of Public Safety: Ms. Kimberly L. Fuchs.  Attorney for the Texas Attorney General of Texas: Mr. Phillip Andrew Lionberger.

Posted in PIA

Court holds DA sought PIA clarification in good faith

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Ogochukwu J. Okowo v. District Attorney, Harris County 14-15-00289-CV (Tex. App. Houston [14th Dist.], May 19th 2016)

This is a Public Information Act (“PIA”) case involving the Harris County District Attorney’s Office.

Okowo was charged and pled guilty to assault.  After he completed his deferred adjudication he made an oral request with the District Attorney’s Office for the prosecutor’s file. The DA produced non-privileged information. Okowo later called then sent an email asking why statements from the complainant were not present.  He was told the notes taken regarding meetings with the complainant were prosecutor work product and confidential. No other statements exist. Five months later, Okowa submitted a written PIA request for the complainant’s statement along with some other information. The DA called then wrote Okowo seeking a clarification as to whether he was seeking additional information from his original oral request. Okowa responded he was seeking the same information but wanted to require the DA to seek a Texas Attorney General opinion. The DA submitted an opinion request. The AG opined the witness notes were prosecutor work product and protected from disclosure. Okowo brought this mandamus action to compel production. Both sides submitted summary judgment motions. The trial court ruled for the DA.

The court first determined the oral request did not trigger PIA requirements. Okowo asserted the oral request did not trigger the requirements but the DA’s voluntary response brought it under the PIA. The court disagreed. Next Okowo asserted the DA did not seek clarification in good faith but for delay purposes. The court analyzed all of the communication and uncontroverted evidence and determined the DA made a good faith request for clarification.  Therefore, the 10-day deadline for the District Attorney to seek an opinion from the Attorney General started to run from receipt of Okwo’s clarification.  Next, the court analyzed the information and determined the notes were prosecutor work product and protected from disclosure.  As a result, the trial court properly ruled the information was excepted from disclosure.

For the full opinion click here. The panel consists of Chief Justice Frost, Justice Boyce and Justice Wise. Memorandum opinion by Justice Boyce. The attorney for the Harris County District Attorney is Scott A. Durfee and Appellant Ogochukwu J. Okowo appeared pro se.

Posted in PIA

City failed to establish risk of injury to the public or specific individuals if information was release under PIA

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The City of Carrollton v Ken Paxton, Attorney General of Texas, No. 03-13-00838-CV (Tex. App. – Austin, April 14, 2016)

This is another Public Information Act (“PIA”) case involving requestor Steven Benzer to come out within the two weeks. The first opinion summary can be found here.

In this case the court made numerous references to its recent opinion which the panel cited as Carrollton I. In Carrollton I, Benzer requested police information regarding his neighbors and various police activities in the area. The Austin Court of Appeals held most of the information should be withheld as it was not “basic information” as opined by the Attorney General. In this case, Benzer also requested a large amount of police information regarding his neighborhood as well as some ordinance information. The City urged that Benzer’s history of violent crime, including violence against the neighbors with whom he seems to continually find antagonism. However, the evidence ultimately falls short of raising a fact issue as to whether or why release of the specific information at issue would create a substantial risk of physical harm at the hands of Benzer or anyone else. Further as far as the “basic information” goes, the relevant inquiry is instead whether the substance or content of the information, as opposed merely to its form, qualifies under Tex. Gov’t Code. §552.108(c). In this case, unlike Carrollton I, the officers determined crimes had been committed, so the basic information definition applies. Additionally, the “mug shots” of Benzer’s neighbors, alone, are not protected by privacy interests. Finally, the City failed to establish an abuse of discretion in awarding attorney’s fees to the Attorney General under §552.323.

If you would like to read this opinion click here.  Opinion given by Chief Justice Rose and Justice Pemberton.  Memorandum opinion given by Justice Pemberton.  Attorney for the Appellee is Matthew R. Entsminger.  Attorneys for the Appellant are George E. Hyde and Scott M. Tschirhart.

Posted in PIA

Public official’s private email addresses must be released under the Public Information Act.

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The Austin Bulldog v. Lee Leffingwell, Mayor, et al. 03-13-00604-CV (Tex. App. – Austin, April 8, 2016)

This is a Public Information Act (“PIA”) case where the Austin Court of Appeals held, as a matter of first impression, that the personal email addresses of council members cannot be redacted from public documents.

The Austin Bulldog (“Bulldog”) made a PIA request for information contained within emails. The City officials produced responsive documents, including responsive emails which contained public business but were sent/received from the officials’ personal email accounts. While the City released the responsive emails, it redacted the email addresses from the private accounts after receiving an opinion from the Texas Attorney General. Pursuant to Tex. Gov’t Code §552.137(a) the email address of “a member of the public” can be redacted from public documents. The Bulldog sued seeking the full set of email addresses. However, the trial court granted the City’s motion for summary judgment.

The court held a “member of the public” is not defined by the PIA, or any other Texas statute. And while the court agreed that the plain and common meaning of “member of the public,” is simply “someone belonging to the community as a whole” they disagreed that it is the plain and common meaning in the context of the PIA. Without much reference to standards of statutory construction but by reference to cases involving police, the court held when used in context with another category or group of people (i.e. the governmental body), whether specifically identified or simply understood, “member of the public” is a shorthand way to identify someone who does not belong to the governmental body. As a result, the email addresses must be released. In a footnote, the court noted “[b]ecause it is not before us on the facts of this case, we do not address whether a member of a governmental body who communicates electronically with that entity outside of his governmental capacity would be part of that entity for purposes of section 552.137.” In other words, the court is saying that a public official who utilizes his/her private email for only private purposes, may still be able to shield it from disclosure, but the instant the official uses it to conduct public business, all bets are off.

If you would like to read this opinion click here. Chief Justice Rose, Justice Pemberton and Justice Bourland. Opinion by Chief Justice Rose. The attorney listed for the Bulldog is Mr. Bill Aleshire.  The attorneys listed for the City Defendants are Danley Cornyn, Mr. James E. Cousar and Ms. Karen Kennard.

AG’s opinions on “basic information” under PIA noted as unreasonable and contrary to statutory text says Austin Court of Appeals

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The City of Carrollton v Ken Paxton, Attorney General of Texas, No. 032-13-00571-CV (Tex. App. – Austin, March 31, 2016).

This is a Public Information Act (“PIA”) case where the 3rd District Court of Appeals agreed substantially all of the documents are protected from disclosure. This is a very long opinion (29 pages with 88 footnotes), but with good analysis and information.

This case stems from a succession of ten PIA requests, made to the City over a period of approximately four months, by Steven Benzer mostly dealing with police response information. The information sought to be withheld chiefly included notes generated within a Computer-Aided Dispatch (CAD) system that the City’s police department utilizes. The City timely requested an opinion from the Texas Attorney General who opined the “basic information” contained within the documents was subject to release. Following a hearing, the district court denied the City’s summary-judgment motion and granted the Attorney General’s motion, declaring specifically that “basic information within a requested computer-aided dispatch (CAD) report is not excepted from disclosure.”

The court held the Texas Legislature has notably excepted from release information created by law-enforcement under §552.108 (law-enforcement exception). Benzer had been incarcerated for, among other things, engaging in violent, threatening, and retributory behavior toward various neighbors. The liberal instructions within the PIA does not authorize the AG to “construe” the PIA in derogation of the statutory text the legislature has actually used. The court agreed that when records deal with law enforcement investigations which do not result in convictions, they are excepted. Records that, the release of which would interfere with investigation or prosecution are also excepted. The two sections are exclusive and the AG has no discretion to decline to credit either claim, even if raised in the alternative in the same brief.   The Attorney General’s construction of §552.108 is not reasonable or consistent with the statutory text.

Further, the term “basic information” refers to information about an arrested person, an arrest, or a crime. The court did a good job of delving into an explanation of what “basic information” is intended to be and its history after its creation in Houston Chronicle v City of Houston, 531 S.W.2d 177, 185 (Tex. Civ. App.—Houston [14th Dist.] 1975), writ ref’d per curiam, 536 S.W.2d 559 (Tex. 1976). Noting that “[d]espite these somewhat shaky jurisprudential origins, the concept of a constitutional right of public access to certain ‘basic information’ otherwise protected by the law-enforcement exception quickly became enshrined in Attorney General open-records decisions. And subsequent decisions also expanded the concept’s scope and application beyond the parameters originally addressed in Houston Chronicle.”  But since the Legislature defined “basic information” for purposes of Subsection (c), there is no basic information beyond that which is defined. The “Legislature has explicitly limited the potential scope of ‘basic information’ subject to disclosure under Subsection (c) solely to that which is ‘about’ (i.e., on the subject of or concerning) either ‘an arrested person,’ ‘an arrest,’ or ‘a crime.’” If law enforcement neither make an arrest or determine a crime was committed, no basic information can be at issue by definition. This holding disposed of 9 out of the 10 requests.

However, one request did clearly indicate a crime and contained basic information about the crime. The proper focus when applying the physical-safety exception is “whether disclosure of the particular information at issue would create a substantial threat that the information could be used to accomplish physical harm.”  And while the City offered evidence of Benzer’s violent criminal history, that alone does not demonstrate disclosure will create a substantial threat of physical harm to his neighbors. The City failed to establish the threat and also failed to establish the elements of the informer’s privilege. However, since 9 out of 10 requests were reversed as to release, the issue of attorney’s fees is reversed and remanded to the court to reconsider.

If you would like to read this opinion, click here.  Panel: Chief Justice Rose, and Justice Pemberton.  Opinion given by Justice Pemberton.  Attorney for Ken Paxton, Attorney General of Texas is Matthew Entsminger.  Attorneys for the City of Carrollton, Texas are George Hyde, Scott Tschirhart, and Lauren Crawford.

Investigating attorney’s collection of witness statements in employment investigation not privileged and subject to PIA disclosure says Austin Court of Appeals

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The City of Houston, Texas v. Ken Paxton, Attorney General of Texas 03-15-00093-CV (Tex. App. – Austin, February 23, 2016)

This is a Public Information Act (“PIA”) case where the Austin Court of Appeals affirmed the order requiring the release of the documents at issue.

The Mayor of Houston issued executive order 1-39 which created the Office of Inspector General (“OIG”) within the City which was charged with investigating employee misconduct. During an investigation an OIG attorney interviewed several witnesses, including the employees accuse of wrongdoing in a particular case. The documents at issue in this lawsuit are two of the sworn statements by employees. An attorney representing a different employee requested the investigations under the PIA. The City filed a request for an AG opinion to withhold the documents. The AG opined most of the information was protected by the attorney/client privilege and excepted from disclosure, but the two employee statements were not and must be released. The City filed suit, but the trial court ruled in favor of the AG holding the documents must be released. The City appealed.

Relevant to the circumstances here, the PIA provides that a completed investigation made by or for a governmental body is public information and not exempted from disclosure unless it is expressly confidential under other law. Tex. Gov’t Code § 552.022. Texas Rule of Evidence 503(b)(1) provides: “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or a representative of the client and the client’s lawyer or a representative of the lawyer.” Tex. R. Evid. 503(b)(1). The privilege extends to a “representative of the client” only if the representative is “a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client,” or is “any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.” Tex. R. 503(a)(2). After analyzing the explanations provided by the City, the court held the City failed to meet its burden under the PIA that the documents fell under the privilege. The statements contained an admonition page noting the employees were not to share the information with anyone other than their own lawyers. The OIG’s purpose was not the rendition of legal services to these employees, but to investigate them. There is no evidence that the employees at issue knew their statements to the OIG investigator were for the purpose of the attorney effectuating legal representation for the City.  As a result, they are not protected by the attorney/client privilege and are subject to disclosure.

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Goodwin and Justice Bourland.  Memorandum Opinion by Justice Puryear.  The attorney for the City of Houston is listed as Mary Stevenson.  The attorney for the Texas Attorney General is Matthew R. Entsminger.

Posted in PIA

Amarillo Court of Appeals overrules AG opinion and holds civil service video examinations are excepted from public disclosure under collective bargaining agreement

Captain Edwin Scott Hilburn v. The City of Houston, Texas; and Ken Paxton, Attorney General of Texas 07-15-00158-CV (Tex. App. – Amarillo, January 21, 2016).

This is a Public Information Act (“PIA”) case involving promotional examination documentation.

The City conducted the Houston Fire Department Senior Captain examination. Included within this examination, for the first time, were two new exercises: the Subordinate/Organizational Problem Exercise (SP) and the Oral Tactical Exercise (OT).  The SP and OT exercises were video recorded and reviewed by anonymous assessors.  The City received a PIA request for various information, including the SP and OT videos. After going through the administrative process, the AG determined some of the testing information was subject to release. The City filed suit under PIA to withhold the information. Hilburn intervened.  The City and Hilburn filed opposing summary judgments. The trial court granted the City’s motion and denied Hilburn’s.

The court first determined the  City complied with Tex. Gov’t Code §552.3221 allowing the filing of responsive documents in cameria.  It also noted that such filing is permissive, not mandatory, so failing to follow this provision does not equate to a waiver of arguments. The court then determined the City properly raised §552.101 exception and did not waive any arguments. Tex. Loc. Gov’t Code §174.006 states the City’s collective bargaining agreement supersedes the civil service statute.  The City’s collective bargaining agreement specifically noted that video exams were permitted, therefore Tex. Loc. Gov’t Code §143.032 (which makes it a criminal offense to knowingly or intentionally reveal part of a promotional examination) was properly raised.  The court then held that properly raising the exceptions does not automatically equate to entitlement. The court then held that even though the AG determined the video portions were not a “written” exam entitled to protection, the record clearly indicates video exams were intended to be confidential under the collective bargaining agreement. Further, §552.122 makes test questions developed by a licensing agency excepted. However, the assessor’s names do not fall under any of the designated exceptions to disclosure, so neither do the rating forms. So, in the end, the questions and videos were excepted, the rating forms of anonymous assessors were not.

If you would like to read this opinion click here. Panel: Justice Campbell, Justice Hancock and Justice Pirtle.  Memorandum Opinion by Justice Hancock. The attorney for the City is listed as Robert W. Higgason.  The attorney listed for the AG is Kimberly Fuchs.  The attorney listed for Hilburn is Barbara A. Hilburn

 

 

PIA only excepts privately generated information, not publically generated information used for private operations says First District Court of Appeals

Harris County Appraisal District v. Integrity Title Company LLC and Marian Cones, 01-15-00145-CV (Tex. App. – Houston [1st Dist.],  December 15, 2015)

This is a Public Information Act (“PIA”) case where the First District Court of Appeals affirmed a trial court order requiring disclosure of certain information.

Several requestors sought information from the Harris County Appraisal District (“HCAD”) including deed document numbers and filing dates. HCAD received an opinion from the Texas Attorney General that certain information could be withheld. Deed document numbers and deed transaction dates (filing dates) are assigned by the Harris County Clerk when a deed is filed with the Clerk. HCAD then obtains this information from PropertyInfo, a private company that gathers this information from the Harris County Clerk and provides it to HCAD pursuant to a contract. HCAD asserted that the information was excepted from disclosure under two sections of the PIA— §552.149 (the so-called “MLS exception” ) and §552.110 (the trade secrets exception).   The Requestors filed suit to compel disclosure and HCAD filed a plea to the jurisdiction.  The trial court denied the plea, and after a bench trial ruled in favor of the Requestors and compelled release. HCAD brought this appeal.

The court first determined that the PIA grants jurisdiction to the court to consider this request under a mandamus mechanism. A trial court has jurisdiction to consider whether specific information is “public information” regardless of any opinion by the AG. HCAD acknowledges that the deed document numbers and filing dates are publicly available information that PropertyInfo obtains from the Harris County Clerk, but argues that, because HCAD receives the information from PropertyInfo, a private entity, and not from the Harris County Clerk, §552.149 prohibits HCAD from disclosing that information. The court held HCAD’s reading of §552.149 is too broad and that the statute is designed to protect only privately generated information. Further HCAD did not provide any evidence to support the prongs of the “trade secret” exception to disclosure. Since the information is publically generated, the information is not subject to exception.

If you would like to read this opinion click here. Panel: Justice Higley, Justice Huddle, and Justice Lloyd. Opinion by Justice Huddle.  The attorneys listed for the District are Donna Johnson and Andrea Chan.  No counsel is listed for the Appellee, but the briefing indicates Bill Aleshire filed the Brief of Appellees.

Posted in PIA

Texas Supreme Court invalidates AG opinion that certain private entities contracting with City are subject to PIA

GREATER HOUSTON PARTNERSHIP v. KEN PAXTON 13-0745 (Tex. June 26, 2015)

This is a Public Information Act (“PIA”) case where the Texas Supreme Court holds that contrary to the Attorney General’s interpretation, certain private entities contacting with the state are not subject to disclosure requirements of the PIA.

Here, Greater Houston Partnership (“GHP”), a nonprofit corporation providing economic-development services to the City and other clients pursuant to quid pro quo contracts, contests whether it is a “governmental body” in whole or in part under the PIA. Consistent with its business model, GHP contracted to provide consulting, event planning, and marketing services to the City of Houston, pursuant to an “Agreement for Professional Services.” A requestor, Jenkins, sought a copy of GHP’s check register asserting GHP is supported, in part, by public funds and therefore subject to the PIA. The AG opined GHP was a governmental body subject to the PIA. The trial court found GHP was a governmental entity and the court of appeals agreed.

The Court first went through the history of the PIA and the important public purpose it supports. However, it focused on statutory construction and held the focus on the inquiry is what does “supported. . . by public funds” mean under the PIAs definition of a governmental entity. While the court expressly stated it was very mindful of the liberal-construction clause of the Act, “liberal-construction objectives do not permit a construction of the Act untethered from its statutory moorings.” The Court then went through a detailed analysis of the statutory language using various statutory construction principles. The court ultimately held that to qualify as being “supported” by public funds means the entity must be “sustained” by public funds and rely heavily and such funds for its existence. This does not mean “maintained” by public funds as all entities in contract with the State use funds for maintenance.  “Sustained” ensures the Act “encompasses only those private entities dependent on the public fisc to operate as a going concern.”  The Act also focuses on entities in the definition section which “describe ostensibly private entities deputized by the government to provide services traditionally considered governmental prerogatives or responsibilities. Thus, although nominally private, each is in fact acting as a quasi-public entity performing a core governmental function.”   The Court held that while its ruling is based on the statutory language, the concepts are consistent with other states. Based on its reading GHP does not qualify as a governmental entity subject to the PIA.

Justice Boyd’s dissent asserts the Act is ambiguous and the court should defer to the AG for guidance. The majority took issue with that. The dissent went through the history of the PIA and the AG’s various opinions. Based on that and the statutory language, Justice Boyd would conclude GHP was a governmental entity for purposes of the PIA.

If you would like to read this opinion click here. Justice Guzman delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Lehrmann, Justice Devine, and Justice Brown joined. Justice Boyd delivered a dissenting opinion, in which Justice Johnson and Justice Willett joined.

Posted in PIA

Private parties now entitled to use competitive harm exception to PIA release; Sec. 552.014 no longer restricted to existing competitive bidding

THE BOEING COMPANY AND THE GREATER KELLY DEVELOPMENT AUTHORITY N/K/A THE PORT AUTHORITY OF SAN ANTONIO v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS, 12-1007 (Tex. June 19, 2015).

This is a Public Information Act request lawsuit involving competitive information. The Texas Supreme Court reversed lower court rulings and the AG opinion and held Boeing’s information could be withheld.

The Port Authority of San Antonio is a separate entity created by the City of San Antonio to help facilitate brining Boeing to the former Kelly Air Force Base in the late 1990s. Later on a former Boeing employee submitted a Public Information Act request to the Port for various Boeing corporate information, including the lease agreement. Boeing submitted arguments to the Attorney General noting the information is competitively sensitive information regarding its overhead costs at Kelly that would give advantage to its competitors. According to Boeing, a competitor could take the detailed information in Boeing’s lease and determine Boeing’s physical plant costs at Kelly, allowing competitors to underbid Boeing on government contracts. Boeing provided information including the fact the information is so securely kept within its corporate structure that only a few employees have access to it.  The AG determined the information must be released and Boeing appealed. The trial court ruled against Boeing and the Court of Appeals affirmed.

Under §552.104, Boeing argued redaction of financial information is required if “information that, if released, would give advantage to a competitor or bidder.”  The AG argued that exception is not applicable to private parties but only the local government. The Court of Appeals adopted this reasoning. However, the AG’s interpretation did not harmonize the purposes of the Act so much as rewrite them. “Nothing in the Act bars private standing to prevent public disclosure generally and nothing in section 522.104 specifically limits its application to the government.” The Supreme Court noted the Court of Appeals was mistaken by interpreting the Port’s decision to allow Boeing to protect its own interest as an opposition to release. It was not and equates merely to letting Boeing protect itself. After analyzing the language of the statute it held the Legislature intended private parties and government parties alike whose “competitors” or rival “bidders” would be “advantaged” by disclosure have the right to raise the PIA exception.  Additionally, it is not limited to only “ongoing competitive bidding” as nothing in the text states that restriction. The evidence at trial demonstrated the intense competition that exists in the aerospace industry like those that sustain Boeing’s operations at Kelly and the release of the information sought would give an advantage to its competitors.  As a result, it must be withheld.

If you would like to read this opinion click here.  JUSTICEDEVINE delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE WILLETT, JUSTICE GUZMAN, JUSTICE LEHRMANN, and JUSTICE BROWN joined. JUSTICE BOYD filed a dissenting opinion. JUSTICE JOHNSON did not participate.  The docket page with attorney information is found here.

 

 

Posted in PIA