*1 In re the OF CITY GEORGETOWN
George Russell, capaci- in his official
ty Acting City Manager and Officer Information,
for Public Relator.
No. 00-0453.
Supreme Court of Texas.
Argued Jan. 2001.
Decided Feb. 2001.
Rehearing April Overruled *2 552.022(b). The
law.” Gov’t Code are “other of Civil Procedure Texas Rules reports consulting-expert information that category a under those rules. expressly confidential court should not trial Accordingly, the re- City disclose have ordered conditionally a writ of port, and we issue mandamus.
I has been in- City Georgetown The arising discharges suits from volved two plants. at one its wastewater treatment with those suits and other In connection Attorney anticipated litigation, City re- expert engineer consulting a tained an Ravel, a written assessment of certain prepare Bojorquez, Stephen Alan Jacob J. report The was used in Banks, parts plant. Marianne Landers C. Robert litigation, but Heath, Warr, pending connection Amy with Bickerstaff Heath Smi- Hart, at McDanial, City Manager Bob who was Pollan Kever & ley Gregory J. time, consulting expert’s Hudson, also attached the Austin, for relator. documents, a among other self- report, Loudermilk, Gen., Atty. Brenda Office of job his that he performance evaluation of Terrell, Hill Riggs, Jennifer S. Randall D. City The prepared for Council members. Graham, Gilstrap Cornyn, Adams & John City has terminated Hart for reasons since Gen., Eads, Atty. Taylor, Don Andy Linda expert’s unrelated says were Walker, Gen., Austin, Atty. Office of for report. respondent. litigation the wastewater While about Justice OWEN opinion delivered the Austin ongoing, was plant treatment Court, HECHT, Justice which American Statesman requested City ENOCH, Justice Justice HANKINSON of Hart and to release evaluations joined. and Justice O’NEILL City The responses to those evaluations. again upon supplied requested are once to con- documents We called expert’s report. consulting Information Act strue Texas Public withholding (formerly procedures as the Texas Rec- followed the Open known 552.301(d) Act). City Georgetown con- information set forth ords sought Act a that section 552.022 of the Act does of the Public Information tends it to disclose to the Austin ruling Attorney require General. Americanr-Statesman a expert’s report that the was report prepared asserted excepted from under section consulting expert a in connection with disclosure 552.103(a) the report of the Act because pending anticipated litigation. Section body relating litigation that a “information provides to which the state completed reports or evalua- civil or criminal nature must disclose political is or “unless the of information subdivision tions party.” made confidential under Tex.Gov’t Code Attorney General’s office issued a II written in which ruling it concluded that ex- Before we consider the merits of pert report did fall within section contentions, parties’ respective 552.103(a). However, the ruling further procedural posture of this proceeding war *3 concluded that notwithstanding excep- this rants discussion. trial court this tion, expert’s the report must be disclosed was requested case to and issue a writ did it was a “completed report” because directing of mandamus the City George 552.022(a)(1) meaning the of section and general a town release a document. As was not made confidential proposition, rights may when be enforced “other law.” court, suit a trial review of determi through ap nations that court are an filed City against Attorney suit the peal appeals petition a court of and then General sections 552.824 for review in Court entry this after of a Act, seeking 552.325 of the declaratory a judgment. generally final See Love v. judgment it not required was to dis- Wilcox, 515, 119 Tex. 521 report. close the The Austin American (1930); see also Tex.Civ.Prac. & Rem.Code Statesman intervened in that suit under 51.012; Tex.R.App.P. 53.1. This is so 552.325(a) Act, seeking of the a if sought even the relief in the trial court is disclosure, writ of compelling mandamus a Love, a writ mandamus. 28 S.W.2d at declaratory judgment, attorney’s fees. ordinary 521. “Where these remedies are hearing only The trial court a held on complete adequate, extraordinary the report whether disclosure of the re- was jurisdiction original of the Supreme Court quired. hearing, At the of that conclusion the Appeals or of Court of Civil cannot be the trial writ court issued a of mandamus successfully Id. invoked.” City produce directed the the ex- pert’s report. City promptly filed a case, The trial court in this howev petition a for writ of mandamus in the er, issues, dispose chose not to of all court of appeals, which denied without accordingly final judg did render a opinion. an resolving ment. Instead of whether disclo Act sure was under the at the then City petitioned this Court to only time that resolved same remain grant emergency relief and issue a writ of case, were ing issues which attor directing mandamus trial va- court to issues, ney’s fee the trial held a court cate its a granted stay order. We hearing solely question on the of disclo trial court’s order and set the matter for The trial then sure. court issued order oral argument. We have received amicus directing City consulting release the opposition City’s briefs in petition expert’s report by following day. noon the Express-News, from the San Antonio circumstances, City these Under had Association, Daily Texas Newspaper adequate remedy by no and man appeal, Association, Press in sup- Texas damus is the vehi appropriate procedural port City’s petition from the Texas Packer, cle to seek relief. See Walker Counties, Association of Munici- Texas (Tex.1992). 827 S.W.2d pal League, Attorneys Texas As- sociation, case, the Texas Conservation turn Water We to the central issue in Association, and the requires Texas Association is whether the Act which Legal consulting expert’s report. School Boards Assistance Fund. to release its C, Subchapter such as
III con- process privilege the deliberative broadly information” is defined “Public 552.111, could in section tained collected, in the Act as “information that Id. report from disclosure. at 359- final assembled, or maintained under law trans- ordinance or connection with the aby govern- action official ... business amended sec- body; or ... for a governmental mental the Act now That section of tion 552.022. body
body and the owns public infor- provides that right to it.” has of access re- excepted lists are “not mation it Public infor- TexGov’t chapter un- under this quired disclosure the public” to be “available to expressly confidential under they are less *4 excep- under 552.021 with certain section Chap- law other than meaning excep- are in Act. tions that found One Code, which is 552 the Government ter litigation of relating tion is “information Act. Tex.Gov’t Code the Public Information a civil or criminal nature to which the state added). 552.022(a) (emphasis Since a political may a subdivision is or Chapter in 552 litigation exception is found 552.103(a). party.” Id. Code, exception that of the Government stipu- The Austin Americanr-Statesman of infor- apply categories does not 552.022(a). it lated in the trial court the document that in section mation enumerated litigation exception seeks covered at report contends that the The Statesman 552.103(a). At- embodied in section no completed report and that issue a torney consulting does not contend other- General makes a “other law” (to Instead, we parties wise. those whom completed report confidential. expert’s Statesman) as collectively will refer has conceded in this City exceptions assert that none of the in Sub- forth in that the set Sub- Court Act, chapter including litiga- of the C Act, including litiga chapter of the C tion that exception, apply information apply do to information exception, tion not 552.022(a). must be disclosed under section be disclosed under section that must Among categories dispute City Nor does must is “a be disclosed under that section expert’s report “completed” evaluation, completed report, ... or inves- City Act. The contends meaning of the “expressly that is confidential tigation” Rules of Procedure only that Texas Civil 552.022(a)(1). under other law.” Id. 192.3(e) law” that 192.5 are “other and 1999, litigation and other ex- Until reports consulting-expert make of the ceptions Subchapter set forth C Thus, presented we are with confidential. Act other- applied all information that Legisla very issue. When narrow disclosed, including have to be wise would 552.022, it did intend section ture amended of information listed in sec- categories work-product to include the “other law” pre version of tion 552.022. 1999 codified consulting-expert privileges and cate- emphasize[d] “section 552.022 that its procedure? We conclude the rules of limit gories meaning [did] it did. Act’s sections.” Garland construing a News, point in Morning starting 359 Dallas Garland, itself. (Tex.2000). provision is the statutory provision held we law” refers “other report under 552.022 that a final Section document (b): (a) 552.022, recognized we both subsections but also (1959) (same)). Indeed, limiting Without the amount or before kind of information that public adopted infor- this of civil procedure Court rules evidence, chapter, following under this much of the law governing in- are evidence and court procedures was con- formation not excepted from re- tained statutes.1 In when the quired chapter disclosure Legislature by upon statute “conferred] unless confidential relinquish[ed]” to this Court full rule- under other law: power,2 thereby making acknowledged
(1) audit, authority our to make the law report, governing a completed evalua- tion, of, for, civil investigation procedure and evidence.3 The law of civil governmental body, procedure and evidence did not provided as be- simply Section come less “law” [certain law enforce- because it information]; prosecutorial legislated ment and judicially moved statutes to
promulgated rules. (b) A court this state or- evidence, procedure The rules of governmental body der a or an officer preceded them, well as statutes that information to withhold from attorney- have embodied *5 public inspection any of category long client that privileges part have been information described Subsection of common law. The United States or to not produce category of Supreme recognized Court the work-prod- inspection duplication, information for uct fifty years ago doctrine over Hick- unless the of information is 495, Taylor, 385, man v. 329 U.S. 67 S.Ct. expressly made confidential other (1947). 91 451 L.Ed. Former Rule 186a of law. the Texas Rules of Civil Procedure was 552.022(a), (b). Tex. Gov’t Code promulgated 1957 to protect work product litigant of a prospective litigant. The term “other law” is not limited to Hanlon, parte 204, other The See Ex S.W.2d commonly statutes. understood 406 207 (Tex.1966) meaning judicial (observing of that Rule 186a “law” includes deci- was judi- promulgated by protect product). sions and rules intended to work The ciary, procedure origins such rules of of the attorney-client privilege as evi- dence. we Although know of no case even older. We in Ford Motor noted Co. (Tex.1995), which this has had to con- Leggat, Court occasion v. 904 S.W.2d 643 strue the term “other law” in a attorney-client when used has been privilege “[t]he statute, we have said that our rules of recognized privileges as ‘the oldest procedure the same “have force and effect for confidential communications known ” Cross, as statutes.” Missouri Pac. R.R. at 647 (quoting v. common law.’ Id. (Tex.1973) (“The 868, Zolin, 554, 562, 501 872 Tex- United States v. 491 U.S. 2619, (1989)). as Rules of Civil Procedure have the same 109 L.Ed.2d 469 S.Ct. 105 statutes.”) (citing force and priv- effect Free- The Freeman, 148, ileges integral part man v. 160 Tex. have been 327 S.W.2d our 12, 1939, R.S., 25, May Leg., 1. A brief discussion and citations 2. Act of 46th ch. 1, (former Caper- former can be Tex.Gen. 201 Tex. statutes found in Kent 1939 Laws McGee, 1731a). Rev.Civ.Stat. art. Background, Scope ton & Erwin Evidence, Applicability the Texas Rules 49, Const, (1983). 20 Hous 56 V, § 3. See L.Rev. art. 31.
333 of section 552.022 ad- interpretation fully cognizant law. The would have Statesman longstanding procedur- law and the vocated governmental bodies. impact it when on evidentiary embodying profound al and rules boards, counties, cities, term law.” School it used the broad “other entities, governmental name but a few Supreme States Court had United legal advice when could not obtain written interpret phrase occasion to “all conducting operations. making decisions Ry. law” in & Western Ameri- Norfolk have to dis- entities would Governmental Ass’n, 117, Dispatchers 499 can Train U.S. strategy those legal close advice (1991). 113 95 S.Ct. L.Ed.2d contracts negotiating were with whom in the provision was whether a issue rendering pro- agreements, or other Act, Interstate Commerce 49 U.S.C. gov- could decidedly cess one-sided. Nor 11341(a), exempted from carriers frank, engage in search- ernmental entities legal obligations “all other law” included legal involved ing self-evaluations collective-bargaining agreement. under a disclosing communi- counsel without those at The Supreme Id. S.Ct. consequence, governmental cations. As rea- Court held that did. The Court forego fruitful might entities well choose to law,” by phrase soned that the “all other to seek needed self-analysis decide not itself, Id. “indicates no limitation.” at legal advice. 1156. The Court further ex- S.Ct. ability entities to governmental plained that fact that there was other defend claims would also be pursue and coverage “all addition to the impaired. All significantly law” did “not detract from this litiga- bodies to conduct would breadth.” Id. The “all other law” words disadvantage tion at a severe since written appeared phrase exempt “is *6 strategy have to be legal advice would law, antitrust laws and other includ- opposing parties upon request. disclosed to ing municipal State and law.” U.S.C. 11341(a). would also re- § Governmental entities Supreme Court conclud- broad, quired opponents to disclose to their writ- “clear, ed that strategies, ten evaluations of settlement and unqualified” and did not allow impair enti- which would positive distinction “between enactments negotiate possible the lowest ty’s ability liability.” and common-law rules of Nor- would bear the in- Taxpayers settlement. 128, 111 Ry., & at Western U.S. folk creased costs. S.Ct. 1156. Legislative intent to effectuate such Statesman asks us to construe waiver of the sweeping narrowly
words “other law” to exclude our attorney-client privileges glean- cannot be procedure rules of and evidence. It offers “unless ed from the words authority reading no such restrictive made confidential readily law.” of “other The Statesman 552.022(b). § law.” Id. under other agree concedes that if this Court were to deem certain rules of evidence interpretation, only work-prod- with its attorney-client communications to be “con- attorney-client privileged uct matters but permit a client to refuse fidential” by governmen- would have to be disclosed un- “confidential” communications disclose tal entities if that is contained circumstances: specifically delineated der evaluation, or completed report, “a ... (5) A is “confidential” communication investigation.” Gov’t Code 552.022(a)(1). third if not intended to be disclosed to persons than abundantly those to whom dis- clear that information about closure made in consulting furtherance of the Id. experts is confidential. professional rendition of legal services to procedure The rules of also define with the client or those reasonably necessary precision some docu- for the transmission of the communica- Id. at comprise product. ments that work tion. Again, 192.5. rules do have to use (b) Privilege Rules the word “confidential” make informa- tion confidential. The expressly pro- rules (1) rule 'privilege. General A product vide that certain types of work do client a privilege has to refuse to dis- disclosed, not have to be which means close ... confidential communications are confidential. purpose made for the facilitating professional legal the rendition of ser- provisions There of section 552.022 vices client: phrase other than the the category “unless of information is confiden- (A) repre- between the client or a tial under law” that reinforce the of the sentative client and the client’s conclusion did not in- lawyer representative aor of the law- abrogate political tend to the State’s yer; right subdivisions’ to withhold from disclo- (B) lawyer between the and the product sure work or matters covered lawyer’s representative; privilege. Tex.Gov’t (C) by representative the client or a 552.022(b). client, lawyer or a client’s 552.022(a)(16), provid- has representative of lawyer, to a law- ed that information includes “infor- yer representative or a lawyer of a attorney’s a bill for fees representing party pend- another in a privileged and that attor- ing and concerning action a matter of ney-client privilege.” Tex. Gov’t Code therein; common interest 552.022(a)(16). has (D) thus said information does not representatives between subject include information to the attor- client or between the client and a ney-client privilege attorney’s client; bill to representative of the *7 or a political the State subdivision. That (E) among lawyers repre- and their information does not to be disclosed. have representing sentatives same Legislature If the had intended for article client. to that sweep 552.022 so it reached broadly (b)(1). 503(a)(5), Tex.R.Evid. attorney-client all work-product and infor- procedure The rules of civil a delineate mation contained in final or evalua- reports tions, category consulting why for whose experts pains would it have taken descriptions mental impressions opinions have not from disclosure brief been a testifying expert. attorney’s reviewed of that same in information bills 192.3(e). 552.022(a)(16)? express- The rules under If we were to ac- Tex.R.Civ.P. the Statesman’s narrow interpreta- ly provide party a required cept that is not law,” identity, impressions, disclose the mental tion “other a completed evaluation Id. A of opinions consulting experts. issues legal would have to be disclosed entirety law does not have to use the “confi- in though word even reference to dential” expressly impose attorney’s confidentiali- that evaluation in a bill for fees ty. procedure The rules of make it would not have to be disclosed. Section inspection duplication, for given cannot such a strained information is category information unless the construction. under confidential other made expressly reason, agree same we cannot For the law. interpretation with the dissent’s if maintains that 552.022. dissent (b). 552.022(a), Gov’t had preserve intended to (a) in phrase added the privi- attorney-client required excepted “and says that not reports and evalua- leges completed they chapter under unless disclosure this 552.002(a) (b) in tions references under other law” are confidential expressly “expressly that confidential information is that it subsection at the same time added “expressly under law” and made con- (b).4 seen, adding we As have law,” Legis- fidential then (a) Legis- in phrase to foregoing in would not have needed to include lature time for the first eliminated lature (a)(16) phrase subsection “that enumerated applicability exceptions privi- under the privileged in listed Subchapter C to 331; at lege.” 53 S.W.3d Tex.Gov’t Code 552.022, unless disclosure 552.022(a)(16). argues that The dissent in the some law other than our renders the reference construction Act the information confidential. (a)(16) attorney-client privilege sur- at 334. supra See plusage. requiring disclosure of unpersuasive. Any reasoning That “unless categories within section 552.022’s (a)(16) “surplusage” in is entire- subsection they under other are confidential ly “surplusage” consistent with other Legislature necessarily mandated (b) section 552.022. Subsection of 552.022 permit not order or a court could largely, entirely, with if not overlaps governmental body to withhold informa- (a). duplicates subsection These subsec- says be disclosed. tion that the Act must provide, respectively: tions repeated nevertheless (a) limiting amount or Without (b) already it had said what infor- public kind of information (a), a court not order which chapter, following under this pub- “to withhold from governmental body of information in- are category infor- inspection any lic from re- excepted formation and by Subsection mation described quired chapter disclosure under public infor- category produce unless confidential inspection or unless duplication, mation for under other law: information is *8 law.” made confidential under other 552.022(b). (b) It was unneces- may A in this not or- Gov’t Code court state (b), Leg- the sary include but body or an officer to subsection governmental der a Similarly, did so. for to withhold from islature public information (a)(16) in say of did need to public inspection any category not (a) attorney’s fees that information in a bill for described information Subsection attorney- under the “privileged of that produce not to 1999, R.S., May Leg., ch. 4. 76th Act of 1319, § 1999 Tex. Gen. Laws 4501- privilege” excepted
client disclo- part from confidential “under other law” are B, already sure since the Subchapter Subchapter had The C. said, twice, in once but section 552.022 “Failure to Raise before Exceptions Attor- that un- confidential ney the Act General” section of does not der law does not have to be dis- exceptions forth in apply Subchapter to set only closed. But the did. The B: reasonable explanations for the redundan- Excep- § 552.326. Failure to Raise in exceptions cies section about 552.022 Attorney tions before General from disclosure is “ex- when information (a) Except provided Subsection pressly confidential under other law” is (b), the only exceptions dis- Legislature repeated that the out of itself Subchapter gov- closure within C that a caution, an abundance of for emphasis, body may ernmental raise a suit filed Leg- both. There is no indication that the this chapter are that repetition islature intended the in section governmental body properly raised bring change 552.022 about a radical general attorney before connec- application attorney-client, work- request tion with its for a re- decision product, consulting-expert privileges garding Subchapter the matter under G. governmental entities. (b) prohibit does not a Subsection Texas Rules Civil Procedure and governmental body raising from an ex- the Texas Rules Evidence “other ception: within meaning law” of section 552.022. (1) based on a requirement of federal expert’s report at issue in case is this law; or a category “expressly of information (2) involving privacy property under the of civil confidential” rules person. interests of another 192.3(e), procedure. Tex.R.Civ.P. 192.5. (footnotes 552.326 omit- Tex.Gov’t ted).
IY request ruling, City In its for was The Statesman argues City that required by the Act assert before any that it privilege waived have had Attorney expert its re- General consulting engineer’s to withhold the re- within a port “category fell port disagree. from disclosure. We ... expressly made confidential under oth- Statesman first contends 552.022(b). Id. er law.” City right rely waived on the Statesman also provision “other law” section 522.022 asserts waiver report because the did not assert section on the fact that at based issue requested the Act Attorney Manager’s when it was attached to the self- However, ruling. to issue a It is true that evaluation. the trial court could General it said from fact that City requested ruling, when not conclude this bare there simply consulting expert’s report City Attorney had a waiver. The been without excepted from disclosure testified contradiction the trial only pre requested report of the Act. But the Act court that she body relying litigation. purposes analyzing cludes The evi *9 it only on that did not raise with the dence is also uncontroverted that em arise under Sub- Attorney evaluating of the in ployees General if involved cha/pter C. litigation excep 552.022 and its the saw or had access to the Section it consulting expert’s report, though for that has made even tion been no case would be different self- outcome this City Manager’s attached to the Also, pursued by appeal. in the had review been There is no evidence evaluation. obliged of is appeals court report appeal the was used for on the record that a by opinion, pending or its decision written evaluating explain other than purpose it a imposed when denies requirement on record anticipated litigation. Based the us, original pro- for mandamus City conclusively petition before the established Here, court because the trial ceeding.3 report privileged. that See Jordan report sought Appeals v. Court the Fourth Su- ordered disclosure of District, con- hearing a hours after the within few preme Judicial (Tex.1985) attorney adjudicate the and did not (holding party 648-49 that a cluded claim, for manda- City’s petitions claiming privilege a has the burden fees and, this appeals if matter relief in the court of privilege establish that mus privilege sought proper. for which a has been Court were disclosed to a third that no waiver party, ABBOTT, joined dissenting, by Justice place). took and Justice Justice PHILLIPS
Chief BAKER. if hold that documents are privileged We enacting 552 of the Pub- Chapter When or confidential under the Texas Rules of Act, enun- lic Information Civil Procedure or Texas of Evi- Rules unambiguous policy a ciated clear dence, they “category are within a of infor- policy is the of this state “[I]t statement: confiden- [that] entitled, other- that each unless person meaning tial under law” of law, by at all expressly provided wise Public section 552.022 Information complete times to information about Act. We further hold has not that acts affairs of official government consulting-ex- waived its employees.” officials and Tex. pert privileges. We therefore conditional- 552.001(a). The Act “force- Code Gov’t ly directing issue a writ of mandamus policy open govern- a fully articulates vacate granting trial court to its order Consults., Sharp, A Inc. T ment.” & writ of mandamus which (Tex.1995). 668, 675 To effec- 904 S.W.2d City Georgetown produce records to mandated policy, tuate the Austin American^Statesman. liberally be construed Act “shall HECHT, granting for informa- request favor concurring. Justice 552.001(b). tion.” Tex. Gov’t Code join fully opinion I Court’s directives, the only emphasize add a few words To further these broad eighteen Legislature expressly review of a trial decision under identified court’s “public sections and 552.325 of the Public of information be ordinarily Act1 information” and that must disclosed Information should petition to an appeal, appellate upon request. Tex. Gov’t Code Legislature attempted choice court for of mandamus.2 The writ open records safeguard policy af- important of vehicle is because it 552.022(b), review, which limits although adding fect the standard 3.Compare Tex.R.App.P. seq. 52.8(d). 552.001 et §§ 47.1 and 1. Tex. Gov't Wilcox, See Love v. 28 S.W.2d (1930). 515, 521 *10 of, for, courts’ encroachment on its made legislatively by body, or policy established except provided by decisions. That section as Section 552.108.” provides: 552.108, Because section the exception for certain prosecutorial may
A court in law-enforcement this state not order a records, does governmental body apply, engineering or an pub- officer for report at category. lic issue falls within this public information to withhold from fall inspection category report may within the any public litiga- of also infor- (Section (a) tion exception mation disclosure described Subsection 552.103) produce category public of or one of the other Subchapter infor- C but, noted, inspection duplication, exceptions, mation for un- exceptions those less the of category information ex- do not apply. Accordingly, is under the plain pressly 552.022, language made confidential under report of section can law. be it only expressly withheld if confidential under other law. 552.022(b). (b) Id. Subsection makes may clear that courts not order infor- Act construing the to determine (a) falling mation within the subsection report category whether the is within a withheld, categories to be unless the infor- information that “is made confi- made confidential un- dential under other law” therefore can der if other law. Id. But this Court has withheld, guided be should be Court power by judicial to broaden rule the legislative policy underlying the Act. categories of information that are “confi- policy strictly That us to instructs construe dential under other then subsection the language made confidential “expressly (b) is eviscerated from the statute. By under other law” ensure disclosure to determining what information falls outside the full extent the Legisla- envisioned (a)’s scope, subsection may this Court broadly ture. The more Court con- (b) evade the mandates subsection language, strues this the more information order information withheld whenever it disclosure, may be withheld from and the only sees fit. This not contradicts the legislative public more the policy access spirit (b), of subsection to information is thwarted. guts it. For these reasons and for those report contends follow, I dissent. privileged eighteen categories infor- consulting-expert embodied in privileges (a) mation listed in are subsection “not Texas Rules of Procedure 192.5 and Civil excepted from disclosure under 192.3(e) “confidential un- and is therefore [Chapter Id. 552].” This the meaning der other law” within of sec- language plainly exceptions means tion 552.022. But is not the “privileged” to disclosure Subchapter contained C of These discovery same as “confidential.” apply Act do not these of privileges report do not And, falling
information. 552.022(a). They disclosure under section (a) within the scope may of subsection simply protect discovery documents from category be withheld infor- “unless if the privilege properly asserted. Privi- mation is made confidential un- leges are voluntary waived. 552.022(b). der other law.” Id. privileges That is why discovery recog- The first nized and included Remissive (litigation listed in is “a completed sections (certain 552.107(1) audit, evaluation, exception), legal mat- report, investigation
339
memoranda)
ters),
to make information confidential.”
(agency
and
dential’
But
rules
have to
apply
Act.
those
do
chapter
(b)’s
(b)
purpose
prevent
courts
A comI
this state
ordering information withheld unless
body
from
order a
officer
made confi-
to withhold
public information
Thus,
dential under
Rather,
some other law.
far
sections.
has tak-
from being duplicative, the
provisions
pains
two
en
except
privi-
use different language and serve different
leged
bills,
fee
even though
purposes.
portion
some
of the underlying informa-
completed reports and evaluations— n
tion—
Second, the Court’s conclusion that the
is otherwise made
under subsection
redundancy of
“expressly
confidential
(a).
under other law”
was the result
emphasis begs
Last,
caution or
the question of
when the
has intended
why the Legislature left in
express
information made privileged or
exception for information in a
decision,
fee bill that
by judicial
confidential
it has ex-
“privileged
the attorney-client
noted,
pressly said so. As
section 552.110
(b)
privilege.” Even if subsections
excepts from disclosure
trade secret
“[a]
redundant,
were
under the Court’s reason-
obtained from a person
privileged
ing,
presence
of redundancy anywhere
judicial
confidential
statute or
decision.”
*14
in the statute should
entirely
And,
lead us to
552.110.
in section
Tex.Gov’t
Code
552.101,
abandon the
statutory
rule of
Legislature
construction
excepted “infor-
language
no
shall be treated as sur- mation considered to
be confidential
plusage.
law,
constitutional,
either
statutory,
judicial
decision.” Id.
552.101. But in
The Court
questions:
further
“If the
552.022,
section
Legislature
chose not
Legislature
had intended for
article
expressly except
to
information made con-
552.022 sweep
broadly
to
so
that it reached
by judicial
fidential
judicial
decision or
all attorney-client
infor-
rule.
When the
has used a
mation contained in
reports
final
or evalua-
term one section of a statute and exclud-
tions, why would it have
pains
taken
to
another,
it in
ed
the Court should not
except from disclosure
descriptions
brief
imply
term where it has been excluded.
of that same
in attorney’s
bills
Baldwin,
611,
See Smith v.
611 S.W.2d
616
552.022(a)(16)?”
appropriate by enacting sec noted, But,
tion 552.103. the Legisla clearly exception
ture not to intended
apply information listed
The Court are fair in con- that this cluding interpretation of section UNDERKOFLER, Paul B. Jr. places govern- extra burden on Underkofler, Goins, Crawford requires mental entities because it them to Petitioners, Langdon, & litigation in a certain disclose context docu- private ments that would parties not be produce. But it is within the VANASEK, Respondent. Hugh F. province Legislature’s to make that call. No. 99-0557. are bound apply
We statute’s words as written: Supreme Court of Texas. if, them, legislation applying so on Argued Oct. 2000. in which are found seems to be
harsh, ... the courts ... are not autho- Decided March place rized to on them a forced construc- the purpose mitigating tion for statute,
seeming hardship, imposed by conferring right legisla- which give. It thought proper
ture had not duty of
is the a court administer written, it is not to make the
law as