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

 

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.