Texarkana Court of Appeals holds noncore attorney work product is confidential and not subject to PIA disclosure

Ken Paxton, Attorney General of the State of Texas v. City of Dallas, 06-18-00095-CV, (Tex.  App. – Texarkana, May 15, 2019).

In this Texas Public Information Act (“PIA”) case, the Texarkana Court of Appeals held noncore attorney work product is confidential and not subject to public disclosure under the PIA.

The City received seven PIA requests for reports and other records relating to specified incident investigations, each conducted in response to a notice of claim for damages received by the City. In each case, the City sought an AG opinion and was told to release the information. The City filed suit as an appeal. In cross-motions for summary judgment, the trial court ruled for the City, holding the information was confidential. The AG appealed.

“Core public information” is protected from disclosure only “if it is confidential under either the PIA or other law.” Core public information (also referenced as “super-public” information) includes “a completed report, audit, evaluation, or investigation made of, for, or by a governmental body.” Tex. Gov’t Code Ann. § 552.022(a)(1). It is confidential only if made so by other law.  The City asserted the information is noncore work product under Rule 192.5 of the Texas Rules of Civil Procedure and, therefore, is “confidential under . . . other law.” The Texas Supreme Court has described the level of protection accorded to core work product as “inviolate,” “flatly not discoverable,” and “sacrosanct and its protection impermeable.” In contrast, noncore work product is “[a]ny other work product” that is not core work product.  The record indicates the information at issue includes the City’s investigations, evaluation of claims filed against the City and liability analysis prepared by the City’s employees and agents after the City received the notices of claim. The City employees testified the information constitutes material prepared or mental impressions developed in anticipation of litigation or for trial. Each of the notices of claim in question constitute statutory notices required by the Texas Tort Claims Act. As such, they satisfy the objective standard for anticipated litigation. The in-camera review of the records indicated to the court that the City’s investigations were conducted for the purpose of preparing for potential litigation, therefore qualifying for the subjective prong of the anticipated litigation analysis.  The records are therefore “noncore” work product under Rule 192.5. Finally, after a lengthy analysis of Rule 192.5, the court held the noncore work product was confidential.  The trial court judgment was affirmed.

If you would like to read this opinion, click here.  Panel by Chief Justice Morriss III, Justice Burgess and Justice Stevens. Memorandum Opinion by Justice Burgess.  The attorneys listed for the City of Dallas are James B. Pinson and Nicholas D. Palmer.  The attorney listed for General Paxton is Matthew R. Entsminger.