Lead Opinion
delivered the opinion of the Court,
Recognizing that government is founded on the authority of the people and “instituted for their benefit,”
The PIA does not define, delineate, or restrict the reasons that may be “compelling” enough to withhold requested information following an untimely request for a decision. As a statutory-construction issue of first impression, we must therefore determine whether the interests protected and advanced by the attorney-client privilege are imperative enough to overcome the public’s interest in having governmental bodies promptly request a determination from the attorney general’s office when they seek to protect confidential information from public-information requests. In other words, we must ascertain whether the PIA mandates public dissemination of otherwise confidential attorney-client communications solely because a governmental body missed a statutory deadline.
We hold that, absent waiver, the interests protected by the attorney-client privilege are sufficiently compelling to rebut the public-disclosure presumption that arises on expiration of the PIA’s ten-day deadline. The attorney-client privilege reflects a foundational tenet in the law: ensuring the free flow of information between attorney and client ultimately serves the broader societal interest of effective administration of justice.
Because 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 and is not subject to compelled disclosure under the PIA solely on that basis. We therefore affirm the lower-court judgments holding the at
I. The Texas Public Information Act’s Requirements
The PIA embodies the State’s policy that “each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.”
Under the PIA, the public has a right of access to “public information,”
The right to access is not absolute, however; the Legislature incorporated into the PIA more than sixty exceptions to the public-disclosure requirement.
Consistent with the PIA’s fundamental precept that “[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know,”
To secure compliance with the statute, the PIA provides civil-enforcement mechanisms when a governmental body “refuses to request an attorney general’s decision” or “refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure.”
The PIA also provides criminal penalties for (1) destruction, removal, or alteration of public information, (2) distribution or misuse of “information considered confidential under the [PIA’s] terms,” and (3) criminally negligent failure to provide access to or copies of public information.
In comparison, “[t]he only suit a governmental body may file seeking to withhold information from a requestor is a suit ... seeking] declaratory relief from compliance with [an attorney general] decision.”
II. The Dispute
In this consolidated appeal, the City of Dallas seeks relief from two attorney general decisions concluding the City must disclose confidential attorney-client communications pursuant to public-information requests the City received regarding the McCommas Bluff Landfill (the Landfill case) and a convention-center hotel (the Hotel case). The parties agree the requested information constitutes “public information” under the PIA, but because the information is undisputedly subject to the attorney-client privilege, the City contends the information is excepted from disclosure under PIA sections 552.101 (the confidential-by-law exception) and 552.107 (the attorney-client exception).
Section 552.107 applies to “information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence or the
The parties agree the PIA excepts attorney-client communications from public disclosure, although they disagree about whether protection is afforded under the confidential-by-law exception or the attorney-client exception. The dispute is not about whether the PIA excepts the requested information from public disclosure—the parties agree it does. Nor does the City contend that it may unilaterally make that determination. Rather, the dispute arises because the City failed to timely request an attorney general decision affirming that the information falls within one of the asserted exceptions, as required by section 552.301 of the PIA.
The City requested an attorney general decision twenty-six business days after receiving the written request in the Landfill case and forty-nine business days after receiving the request in the Hotel case. The City’s proffered reason for the delay was inadvertence.
Though attorney-client communications are not intended to be freely accessible to the public under the PIA or available to third parties in proceedings outside the PIA, the Attorney General determined the City must release the requested information.
The City challenged the letter rulings in separate trial-court proceedings and achieved conflicting results. In the Hotel case, the trial court held the City did not have a compelling reason to withhold the requested information. But in the Landfill case, the trial court found the information is excepted from required public disclosure, explaining the attorney-client privilege is an inherently “compelling reason to withhold information” because it is vital to our adversarial system of justice and no authority supports compelling disclosure of information protected by the attorney-client privilege based solely on a missed deadline.
In the Landfill case, a divided Third Court of Appeals affirmed the trial court’s judgment in the City’s favor, holding attorney-client communications are excepted from disclosure under the confidential-bylaw exception and, considering the privilege’s purposes and the protections afforded under the law, a compelling reason to withhold the information necessarily exists and rebuts the public-disclosure presumption in section 552.302.
The Hotel case was transferred to the Thirteenth Court of Appeals pursuant to a docket-equalization order. Applying the appellate decision in the Landfill case as precedent,
On appeal to this Court, we consolidated the Attorney General’s appeals for argument and disposition.
Ill, Discussion
The parties agree that, had the City timely requested an attorney general decision, the PIA does not require public disclosure of attorney-client confidences in either the Landfill or the Hotel case. Nor is there any dispute that the City’s untimely requests activated a presumption that the requested information must be disclosed absent a “compelling reason to withhold the information.” Thus, the dispositive issue is whether a “compelling reason” exists to rebut the public-disclosure presumption.
The resolution of that issue does not turn on whether the attorney-client privilege falls within one statutory exception or another, or whether confidentiality is at the governmental body’s discretion rather
In resolving the dispute at hand, we affirm that even under the compelling-reason standard, information cannot be withheld unless a statutory exception applies, because public information remains public unless it is expressly excepted from disclosure.
We reject, however, the notion that statutory exceptions are categorically distinct from compelling reasons and 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. In some instances, important policies and interests that animate a statutory exception are compelling in their own right. We hold the attorney-client privilege, which is protected by one or more statutory exceptions to public disclosure,
A. “Compelling Reason”
The controlling issue in this case involves the proper construction and application of the “compelling reason” standard in section 552.302 of the PIA, which is implicated when a governmental body seeks to withhold information from public disclosure but fails to make a timely request for an attorney general decision.
As always, our mandate is to ascertain and give effect to the Legislature’s intent as expressed in the statutory language.
The PIA does not define the phrase “compelling reason” or its constituent terms; accordingly, those words bear their common, ordinary meaning unless a different or more precise definition is apparent from the statutory context or the plain meaning yields an absurd result.
Long before the “compelling reason” safeguard was added to section 552.302, the Attorney General authorized governmental bodies to withhold information from public disclosure despite an untimely request for an open-records decision, if a “compelling reason” or a “compelling demonstration” rebutted the statutory presumption of openness.
We decline the Attorney General’s invitation to import restrictions that alter the plain language of the statute at issue here. We have long held a statute’s unambiguous language controls the outcome. When a statute is clear and unambiguous, like section 552.302, we do not resort to extrinsic interpretive aids, such as legislative history, “because the statute’s plain language ‘is the surest guide to the Legislature’s intent.’ ”
The meaning of the term “compelling” is of vital importance to our analysis because it represents a qualitative limitation on the justifications that permit withholding information from public disclosure. Neither a reason nor even a good reason would be sufficient to rebut the public-disclosure presumption. The reason must be “compelling.”
Our examination of dictionaries, treatises, and judicial constructions of similar language
Though not authoritative, we may, as this Court has often done, look to federal cases for guidance on the meaning of terms not otherwise defined.
We similarly conclude that section 552.302’s compelling-reason standard requires an assessment of the relative importance of a reason for withholding information in relation to the presumption of openness.
B. The Attorney-Client Privilege Protects Significant Interests
Privileges “represent society’s desire to protect certain relationships.”
The privilege rests on “the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional
In the governmental context, the attorney-client privilege applies with “special force.”
The notion that “sound legal advice or ■advocacy serves public ends” is not rationally debatable.
Fundamentally, the promise of confidentiality fosters “a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business.”
The attorney-client privilege exists— and has been a cornerstone of our legal system for nearly 500 years
Though the precise issue presented in this case is one of first impression under the PIA, analogous authority from this Court confirms that the attorney-client privilege is inherently compelling. For example, in In re George, we examined the attorney-client privilege in a dispute involving the client’s access to attorney work product.
In Ford Motor Co. v. Leggat, we considered whether to apply Michigan’s more expansive protections of the attorney-client privilege in lieu of Texas’s narrower attorney-client privilege in a conflict-of-laws analysis.
In a different context involving similar tensions between public access and the nеed for confidentiality, federal courts
As the PIA and the common law both bear witness, the attorney-client privilege protects a relationship that is integral to the administration of justice as well as a government that functions for the benefit of the people.
C. Waiver
Despite advancing and protecting important interests, the attorney-client privilege could not be a “compelling reason to withhold the [requested] information” if confidentiality has been waived. Thus, before balancing the interests protected by the privilege against those served by the PIA, we must consider whether noncompliance with section 552.301’s ten-day deadline waives the attorney-client privilege. We hold that a governmental body does not forfeit the attorney-client privilege by failing to timely request an attorney general decision under section 552.301.
“Generally, ‘waiver’ consists of the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.”
Rule 511 of the Texas Rules of Evidence governs waiver of evidentiary privileges by voluntary disclosure. Subsection (a) of Rule 511 sets forth the general rule that evidentiary privileges are waived if the privilege holder voluntarily discloses the privileged matter, consents to disclosure, or places the matter at issue.
The attorney-client privilege may also be waived by inadvertent disclosure during litigation, if the disclosure is accompanied by conduct inconsistent with claiming the privilege of confidentiality. “[T]he essential function of the privilege is to protect a confidence that, once revealed by any means, leaves the privilege with no legitimate function to perform.”
Citing Rule 193.3(d) by analogy, the Attorney General suggests sections 552.301 and 552.302 should be construed as effecting a waiver by inaction or omission. But the scenario described in Rule 193.3(d)— actual disclosure followed by delayed action results in waiver—is the converse of the question presented here: does delay waive the privilege and compel disclosure?
Rule 193.3(d) contemplates waiver of confidentiality in the context of an inadvertent, but actual, disclosure,
In addition to actual disclosure, the attorney-client privilege may be waived by “offensive use” of the privilege. Offensive use occurs when a party seeking affirmative relief “attempts to protect outcome-determinative information from any discovery.”
Finally, and most decisively, section 552.302’s language cannot reasonably be construed as effecting a waiver of confidentiality. Some PIA sections explicitly refer to waiver,
D. Balancing Competing Interests
Our inquiry does not end with establishing that the interests secured by the attorney-client privilege are inherently compelling and that mere delay in seeking an attorney general decision does not waive the privilege. Those determinations impact only one side of the balancing equation. We must also consider whether the significant interests the attorney-client privilege advances outweigh competing interests favoring disclosure and the statutory presumption that disclosure is required.
We begin our analysis by observing that, under the PIA, (1) the public is not entitled to information the Legislature has chosen to except from required public disclosure,
Instead, the failure to timely request an attorney general decision under section 552.301 of the PIA implicates the public’s interest in the “prompt” production of pub-
These interests are undoubtedly significant, but the PIA expressly contemplates they may be overcome by countervailing interests of utmost importance.
Under the PIA, the public has no right of access to privileged information in the first instance and only a rebuttable presumption of access in the second.
For one thing, the interests protected by some statutory exceptions will not independently satisfy the compelling-reason standard; thus, failing to timely assert an applicable exception could result in mandatory disclosure that might otherwise have been avoided. Because section 552.302 provides only a limited safeguard, missing the deadline in section 552.301 is a risky endeavor.
Refusing to request or comply with an attorney general decision carries the additional risk of a civil-enforcement action that—win or lose—would surely be costly. But if lost, obtaining and relying on an attorney general decision under section 552.301 precludes an award of attorney fees and litigation costs to the prevailing plaintiff. The PIA’s fee-shifting provisions thus provide both a carrot and a stick.
Finally, a governmental body’s only way to avoid disclosing public information to a requestor is a suit that “seeks declaratory relief from compliance with [an attorney general] decision issued under Subchapter G [sections 552.301 to 552.309].”
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. Compelled forfeiture of the privilege under such circumstances necessarily undermines its underpinnings and threatens the foundation of a justice system that thrives on full and candid legal representation. Most importantly, however, such an outcome is not supported by a plain reading of the statutory text.
The PIA’s exception for attorney-client communications affirms the importance of honest and candid conversations between governmental bodies and their legal counsel. Eviscerating the privilege by compelling disclosure in pursuit of “promptness” may have a wide-reaching and chilling effect on communications between governmental bodies and their counsel.
Robotic 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 safeguard the Legislature enacted in section 552.302 exists to prevent such a scenario.
E. Section 552.302 Does Not Require Disclosure
When balanced against the PIA’s promptness requirements, the interests
In contrast, allowing a governmental body to withhold attorney-client communications after an untimely request for an attorney general decision bears less onerous consequences that may be ameliorаted by several statutory incentives and disincentives.
Although we must construe the PIA liberally in favor of granting requests for information,
F. Response to the Dissent
Though quibbling here and there about the actual importance of the attorney-client privilege in the public sector, the dissent’s analysis fundamentally depends on the fiat that exceptions and compelling reasons are mutually exclusive under the statute.
First, (the Legislature has placed no restrictions on the compelling-reason standard.| Indeed, as the dissent readily acknowledges, the “actual language” in section 552.302 applies to “any ‘compelling reason.’”
This is not, as the dissent says, “a distinction without a difference”
The dissent’s theory to the contrary turns on an interpretation of section 552.302 that requires privilege plus other compelling circumstances. Aside from en-grafting restrictions that do not exist in the statutory language, the dissent offers few parameters as to what would qualify. We are left only with the dissent’s view that a compelling reason (1) will usually address the governmental body’s “reasons for its failure to timely and properly assert the privilege,”
In summarily concluding that the interests protected by the attorney-client privilege are not significant enough to rebut the public-disclosure presumption, the dissent gives short shrift to the compelling interests underlying the attorney-client privilege, cites no authority supporting compelled disclosure of attorney-client privileged information due to tardiness or inaction, and overlooks the public interest in maintaining confidentiality, of attorney-client communications. As a substitute for these inquiries, the dissent’s analysis elevates promptness to near conclusive importance. The PIA does not, however, require a compelling reason for “untimeliness” or “lack of diligence”; it requires a “compelling reason to withhold the information” from public disclosure. The significant interests advanced and protected by the attorney-client privilege meet that standard.
The dissent’s analytical gaps. are not overcome by the host of boilerplate open-records decisions the dissent offers to “prove[ ]” that routinely depriving the attorney-client privilege of force over the last twenty-two years has not prevented governmental bodies from seeking legal advice or chilled full and frank legal communications.
Ipse dixit, however, is not proof of anything—one way or the other—and is no substitute for 500 years of precedent.
As a final rejoinder, we address the dissent’s refrain that we are substituting our judgment, our preferences, and our rules for the Legislature’s. When we endeavor to ascertain the meaning of an undefined statutory term that is integral to a statutory inquiry, we are not overstepping the bounds of our authority merely because our colleagues disagree with our analysis or conclusions. “[T]o admit that disagreements do and will always exist over hard and fine questions of law doesn’t mean those disagreements are the products of personal will or politics rather than the products of diligent and honest efforts by all involved to make sense of the legal materials at hand.”
IY. Conclusion
The PIA promotes and advances the public’s interest in governmental transparency and openness, but not at the expense of the public’s equally significant interest in ensuring public officials pursue and obtain legal advice and representation in affairs of governance. The significance of the interests protected by the attorney-client privilege and the need to protect attorney-client confidences from compelled public disclosure were not lost on the Legislature in enacting the PIA. The PIA addresses the competing values of transparency and the need for confidentiality by excepting confidential attorney-client communications from mandatory public disclosure. In
Though the PIA must be construed liberally in favor of granting a request for public information, the “compelling reason” inquiry requires us to weigh the public’s interest in expeditious assertion of a statutory exception against the invaluable right to have attorney-client communications protected from compelled public disclosure. Meeting statutory deadlines is certainly important, but as the PIA plainly articulates, is not determinative. Weighing against the need for prompt action is the irremediable consequence of compelling disclosure; once privileged informаtion is disclosed, confidentiality is lost for all times and all purposes. When the interests are balanced, the compelling nature of the attorney-client privilege is manifest. Because there is a compelling reason to withhold information covered by the attorney-client privilege, we affirm the lower-court judgments holding the City of Dallas need not disclose that information to the re-questors.
Notes
. Tex. Const, art. I, § 2.
. Tex. Gov’t Code § 552.001(a).
. See id. §§ 552.101-.1S6.
. Id.
. See id. § 552.301.
. See id. § 552.302.
. See Ford Motor Co. v. Leggat,
. See In re Cty. of Erie, 473 F.3d 413, 418-19 (2d Cir. 2007).
. See, e.g., In re Grand Jury Investigation,
. Tex. Gov’t Code § 552.001(a).
. Id. § 552.021,
. Id. § 552.002(a) ("Public information” means "information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business” by a governmental body, by its employees or officers in their official capacity if the information pertains to official business of the governmental body, or "for a governmental body” if it owns, has a right of access to, or spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information).
. Id. § 552.221(a).
. Id. § 552.001(a).
. Id. §§ 552.101-.156.
. Id. § 552.101.
. Id. § 552.107.
. Id. § 552.120.
. E.g., id. §§ 552.102, .114, .115, ,117, .1176, .1235, .124.
. Id. § 552.1085.
. Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P.,
. Tex Gov’t Code § 552.001(a).
. Id. § 552.301(a).
. Id. § 552.301(b).
. Id. § 552.302 (emphasis added).
. Id. § 552.321(a).
. Id.
. Id. § 552.3215.
. Id. § 552.323(a).
. Id. §§ 552.351-.353.
. Id. § 552.324(a).
.Id. § 552.323(b).
. Id. § 552.107. The evidence and professional-conduct rules “expressly deem certain attorney-client communications to be 'confidential.' ” In re City of Georgetown,
. Tex. Gov’t Code § 552.101.
. The City did not assert a reason for the untimeliness in proceedings below, but at oral argument before this Court, the City's attorney said "we missed the deadlines in both of these instances. It was inadvertence I believe. There’s ... nothing in the record to indiсate anything else.” Paxton v. City of Dallas, Oral Arg. No. 15-0073,
. See Tex. Gov’t Code § 552.302.
. See Tex, Att’y Gen. OR2008-08859 (Hotel case); Tex. Att’y Gen. OR2010-08285 (Landfill case).
. According to the Office of the Attorney General, mandatory exceptions include the confidential-by-law exception and those covering information made confidential under the PIA, including sections 552.102 (“Confidentiality of Certain Personnel Information”), .109 ("Confidentiality of Certain Private Communications of an Elected Office Holder”), ,110 ("Confidentiality of Trade Secrets; Confidentiality of Certain Commercial or Financial Information”), .113 ("Confidentiality of Geological or Geophysical Information”), .114 ("Confidentiality of Student Records”), .115 ("Confidentiality of Birth and Death Records”), .117 ("Confidentiality of Certain Addresses ,,. and Personal Family Information”), .118 ("Confidentiality of Official Prescription Program Information”), .119 ("Confidentiality of Certain Photographs of Peace Officers”), .120 ("Confidentiality of Certain Rare Books and Original Manuscripts”), ,121 (“Confidentiality of Certain Documents Held for Historical Research”), .123 ("Confiden- • tiality of Name of Applicant for [CEO] of Institution of Higher Education"), .124 ("Confidentiality of Records of Library or Library System”), ,126 ("Confidentiality of Name of Applicant for Superintendent of public School District”), .131 ("Confidentiality of Certain Economic Development Information”), .133 ("Confidentiality of Public Power Utility Competitive Matters”), .134 ("Confidentiality of Certain Information Relating to Inmate of Department of Criminal Justice”), .135 ("Confidentiality of Certain Information Held by School District”), .136 (“Confidentiality of Credit Card ... Numbers”), .138 ("Confidentiality of Family Violence Shelter Center ... Information”), .139 ("Confidentiality of Government Information Related to Security or Infrastructure Issues for Computers”), .140 ("Confidentiality of Military Discharge Records”), .142 ("Confidentiality of Records Subject to Order of Nondisclosure”), .145 ("Confidentiality of Texas No-Call List”), .148 ("Confidentiality of Certain Personal Information Maintained by Municipality Pertaining to a Minor”), .151 ("Confidentiality of Information Concerning Information Regarding Select Agents”). See Office of the Attorney General, Public Information Handbook 42-43 & n.158 (2016) (citing Act of May 30, 2011, 82d Leg., R.S., ch. 1229, §§ 3-21, 23-26, 28-37).
.E.g., Tex. Att’y Gen. ORD-677 at 10 (2002).
. Cf. Tex. R. Civ. P. 193.3(d) (actual disclosure of privileged information or materials does not waive the privilege absent disclosure with intent to waive the privilege or failure to claim the privilege within ten days after the party actually discovers the disclosure occurred).
. Abbott v. City of Dallas,
. See Tex. R. App. P. 41.3 ("[T]he court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis .... ”).
. City of Dallas v. Paxton,
. In this appeal, we have received amicus curiae briefs from the Freedom of Information Foundation of Texas, which supports the Attorney General’s position; and the Texas Municipal League, Texas City Attorneys Association, and Texas Association of Counties, which are aligned with the City of Dallas.
. See Tex. Gov’t Code § 552.302.
. See id. § 552.001(a) (under the PIA, “each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees" (emphasis added)); see also Doe v. Tarrant Cty. Dist. Attorney’s Office,
. Because the parties agree the attorney-client exception applies to the requested information, we need not considеr whether privileged and confidential attorney-client information is also protected by the confidential-by-law exception. See Tex. Gov't Code §§ 552.101, .107.
. See id. §§ 552.301-.302.
. TIC Energy & Chem., Inc. v. Martin,
. Id.
. Tex. Gov’t Code § 552.001 (demanding liberal construction to implement the state’s policy of open government and to favor disclosing information about governmental affairs).
. Greene v. Farmers Ins. Exch.,
. See, e.g., Tex. Att'y Gen. ORD-630 at 3 (1994); Tex. Att’y Gen. ORD-552 at 1 (1990); Tex. Att’y Gen. ORD-319 at 1-2 (1982); Tex. Att’y Gen. ORD-150 at 2 (1977); Tex. Att'y Gen. ORD-34 at 2 (1974).
. Tex. Att'y Gen. ORD-677 at 10 (2002). The PIA expressly prohibits a governmental body from releasing information that is "confidential under law" and imposes criminal liability when a person distributes information that is considered confidential under the PIA. See Tex. Att’y Gen. ORD-676 at 2 (2002) (citing Tex. Gov’t Code §§ 552.007, .352).
. See Act of May 25, 1999, 76th Leg., ch. 1319, § 21, sec. 552.302, 1999 Tex. Gen. Laws 4500, 4509; see also Tex. Att’y Gen. ORD-630 at 3 (1994); Tex. Att’y Gen. ORD-552 at 1 (1990); Tex. Att’y Gen. ORD-319 at 1-2 (1982); Tex. Att’y Gen. ORD-150 at 2 (1977); Tex. Att’y Gen. ORD-34 at 2 (1974).
. Sullivan v. Abraham,
. Sw. Royalties, Inc. v. Hegar,
. Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc.,
. See, e.g., Greene v. Farmers Ins. Exch.,
. The American Heritage Dictionary (5th ed. 2016).
. New Oxford American Dictionary (3d ed. 2010).
. Webster's Third New Int’l Dictionary (2002).
. Black’s Law Dictionary (10th ed. 2014) (defining "compelling need").
. State ex rel. Angelini v. Hardberger,
. Barr v. City of Sinton,
. Eli Lilly & Co. v. Marshall,
. See, e.g., Greene v. Farmers Ins. Exch.,
. Rudd Equip. Co. v. John Deere Constr. & Forestry Co.,
. Rudd Equip.,
. See id. at 594 ("[I]n making this determination, a court must balance the litigants’ privacy interests against the public’s right of access, recognizing our judicial system’s strong presumption in favor of openness.”); Kravetz,
. Cf. Gonzales v. O Centro Beneficente Uniao do Vegetal,
. See Tex. Gov’t Code § 552.302.
. Republic Ins. Co. v. Davis,
. U.S. v. Edwards,
. U.S. v. Bauer,
. Trammel v. U.S.,
. Upjohn Co. v. U.S.,
. Fisher v. U.S.,
. See, e.g., Upjohn Co.,
. Id. at 389,
. In re Cty. of Erie,
. Id. at 418-19.
. Upjohn Co.,
. See In re Grand Jury Subpoena Duces Tecum,
. Guidiville Rancheria of Cal. v. U.S., No. 12-cv-1326 YGR,
. Grand Jury Investigation,
. Post at 3 (Boyd, L, dissenting).
. Grand Jury Investigation,
. 8 John H. Wigmore, Evidence § 2290 (McNaughton rev. 1961) ("The history of [the attorney-client] privilege goes back to the reign of Elizabeth I, where the privilege already appears as unquestioned.” (citing Berd v. Lovelace, Cary 88, 21 Eng. Rep. 33 (Ch. 1577))).
. See Pearson v. Miller,
. See Compelling Need, Black’s Law Dictionary (10th ed. 2014) (a need is “compelling” if it is "so great that irreparable harm ... would result if it is not met”).
. See supra n.89.
.
. Id. at 516-20; see also id. at 525 (Brister, J., dissenting) ("I agree with the Court that Ms. Anderson should not be deprived of her property without a compelling reason, but attorney-client confidentiality is a compelling reason.”).
.
. Id. at 647 (emphasis added).
.See Hanson v. Wells Fargo Home Mortg., Inc., No. C13-0939JLR,
. Wilcox v. Bibin, 2:15-CV-00261-EJL-REB,
. In re Nationwide Ins. Co., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding).
. See Tex. R. Evid. 511 (a).
. Id. 511(b).
. 1 McCormick on Evidence § 93 (7th ed. 2013) (emphasis added).
. Tex. R. Civ. P. 193.3(d); see also Tex. R. Evid. 511(b)(2) ("When made in a Texas state proceeding, an inadvertent disclosure does not operate as a waiver if the holder followed the procedures of Rule of Civil Procedure 193.3(d).”).
. In re Christus Spohn Hosp. Kleberg,
. See Tex. R. Civ. P. 193.3(d) ("A party who produces material or information without intending .to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence.”); Tex. R. Evid. 511(b) ("Notwithstanding paragraph (a), the following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the lawyer-client privilege or work-product protection.”).
. In re M-I L.L.C.,
. Republic Ins. Co.,
. See Tex. Gov’t Code §§ 552.0038(f), .008(b), .134(d), .156(d).
. Id. § 552.302.
. Id. §§ 552.001, .101—.156.
. See id. §§ 552.001(a), .021, .301-302.
. See Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P.,
. Tex. Gov't Code § 552.221(a).
. See id. § 552.302.
. See, e.g., id. §§ 552.107 (categorically excepting attorney-client privileged information from the statute's public-disclosure requirement), .302 (rebuttably presuming otherwise exempt information is open to the public); cf. In re Lindsey,
. See In re Grand Jury Investigation,
. Tex. Gov't Code § 552.324(a)(2).
, In re Lindsey,
. In re City of Georgetown,
. See Upjohn Co. v. U.S.,
. E.g., Tex. Gov’t Code §§ 552.321 (request- or or attorney general suit for writ of mandamus), .3215 (action for declaratory or injunc-tive relief against a governmental body for violating the PIA), .323 (fee-shifting provisions favoring substantially prevailing plaintiffs).
. See id. §§ 552.321, A215, .323.
. Id. § 552.001 (demanding liberal construction to implement the state’s policy of open government and to favor disclosing information about governmental affairs).
. See id. § 552.302. In light of this holding, we need not address the City’s alternative argument that "substantial harm” to its bargaining position constitutes a "compelling reason” for withholding the requested information.
. Post at 36-37 (Boyd, J., dissenting) ("Because the Act requires both that an exception apply and that a compelling reason exist, neither the Act’s exceptions nor the privileges and confidentiality that trigger an exception are sufficient alone to establish a compelling reason.”); id. at 30 (”[N]either an exception nor the interests it supports can independently qualify as a compelling reason that outweighs the public’s interest in prompt access to public information under the Act.”), But see id. аt 33 n.20 (agreeing the Court could consider the " 'policy of preventing bioterrorism’ ” that underlies section 552.152’s exception from public disclosure "when deciding whether a compelling reason exists”).
.Id. at 33-34.
. See Tex. Gov’t Code §§ 552.151, .152.
. The dissent's claim to "acknowledge the privilege's importance” falls flat because the analysis does not recognize or evaluate the interests underlying the privilege in declaring those interests are necessarily overcome by delay and necessarily overpowered by the public’s interest in promptness. Post at 3 n. 1, 30 (Boyd, J., dissenting). The dissent, instead, relies on the circular argument that the Legislature excepted privileged information from disclosure to protect important interests, but those interests cannot be "compelling reason[s] to withhold information from disclosure” because the Legislature excepted privileged information from disclosure to the public. See id. at 16-17.
. Id. at 16.
. See, e.g., Tex. Gov’t Code §§ 552.106(a) (excepting from mandatory disclosure "a draft or working paper involved in the preparation of proposed legislation”), .122 (excepting from mandatory disclosure a test item developed by an educational agency funded by state revenue, a licensing agency, or a governmental body).
. Post at 13 (complaining that "the Court can provide no statutory basis for deciding when the interests that an exception protects are categorically compelling and when they are not”).
. Id. at 30. The dissent intimates that an untimely request for an attorney general decision equates to "failure to timely and properly assert the [attorney-client] privilege.” Id. While it is true that, in this case, the City did not timely and properly assert a statutory exception to disclosure, the City has jealously guarded its attorney-client privilege, asserting it as a “compelling reason to withhold the information" from disclosure. There is no statutory deadline for asserting the attorney-client privilege or for claiming a "compelling reason to withhold the information.”
. Id. at 31.
. Id. at 3, 26-29.
. Id. at 14 & n.11.
. See supra, nn.88-92.
. See supra, nn.81-88, 116.
. 8 John H. Wigmore, Evidence § 2290 (McNaughton rev. 1961) ("The history of [the attorney-client] privilege goes back to the reign of Elizabeth I, where the privilege already appears as unquestioned.” (citing Berd v. Lovelace, Cary 88, 21 Eng. Rep. 33 (Ch. 1577))).
. See, e.g., post at 2-3 (Boyd, J., dissenting) ("Under the Court’s holding, establishing the exception will always constitute a compelling reason .... obliterating] the sole method by which the Act compels the government to timely and properly assert the attorney-client privilege.”).
. Hon. Neil M. Gorsuch, Law’s Irony, 37 Harv. J. L. & Pub. Pol’y 743, 752-53 (2014).
. Post at 1-3, 6-8,
Dissenting Opinion
joined by Justice Johnson, dissenting.
When this Court gets to make the rules, it goes to great lengths to protect attorney-client communications. As the Court explains today, under the common law and our evidentiary and procedural rules (that is, the rules this Court gets to make), most attorney-client communications are protected from compelled disclosure unless the client waives the privilege by intentionally relinquishing it or engaging in conduct inconsistent with the right to claim it. Ante at 262-63 (citing In re Nationwide Ins. Co.,
But we don’t get to make the rules here. When the public seeks access to public information that the government possesses on the public’s bеhalf, the Texas Public Information Act controls. Tex. Gov’t Code §§ 552.001-.353. The government has no inherent, constitutional, or common-law right to withhold any public information from the public’s view. The Texas Constitution guarantees that all “political power is inherent in the people,” and the government is “founded on their authority, and instituted for their benefit.” Tex Const. art. I, § 2. Based on the “fundamental philosophy” of this “constitutional form of representative government,” the people of Texas have declared through their duly elected lawmakers that “it is the policy of this state” that “each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.” Tex. Gov’t Code § 552.001(a). Although the people have delegated significant authority to their government, they have not given “their public servants the right to decide what is good for the people to know and what is not good for them to know.” Id. Instead, the people “insist on remaining informed so that they may retain control over the instruments they have created.” Id.
The Texas Public Information Act recognizes that the government may need to keep certain attorney-client communications confidential, just as it recognizes the government may need to keep certain trade secrets, student records, information about bioterrorist threats, and other types of information confidential. In each case, the Act protects the need for confidentiali
Relying on Court-created common-law and litigation rules, the Court decides today to treat the attorney-client privilege as unique and special even though the Act does not. The Act treats the privilege as the basis for an exception to the Act’s disclosure requirement, but the Court holds that it is also—categorically and always—a “compelling reason” to withhold government communications from the public even when the government fails to timely and properly claim the Act’s exception. Under the Court’s holding, establishing the exception will always constitute a compelling reason, so the Act’s compelling-reason requirement is meaningless when applied to attorney-client communications. This holding obliterates the sole method by which the Act compels the government to timely and properly assert the attorney-client privilege.
Nothing in the Act supports the Court’s decision to grant the privilege such special treatment. Nor do the Court’s hyperbolic assertions that holding otherwise might cause the government to stop relying on legal advice.
I.
Compelling Reason
The Texas Public Information Act’s foundational provision requires the government to make public information
The Act provides numerous exceptions to its disclosure requirement. See Tex. Gov’t Code §§ 552.101-.156. But the government cannot unilaterally withhold information it believes falls within one of the exceptions. Instead, it must ask the Attorney General to decide whether an exception applies. Id. § 552.301(a). Specifically, the government must ask for the Attorney General’s decision, identify the exceptions on which it relies, and provide notice to the requestor within “a reasonable time” but not more than ten business days after receiving the public-information request. Id. § 552.301(b), (d). Then, within a “reasonable time” but not more than fifteen business days after receiving the request, the government must submit written comments to the Attorney General explaining why the asserted exceptions apply and must send a copy of those comments to the requestor. Id. § 552.301(e), (e-1).
The Act expressly refers to section 552.301’s ten- and ñfteen-day time limits as “deadlines.” Id. § 552.2615(g). A deadline is “a date or time before which something must be done and after which the opportunity passes or a penalty follows.” Webster’s Third New International Dictionary 580 (2002). Section 552.302 describes the consequences of the government’s failure to meet section 552.301’s deadlines:
If a governmental body does not request an attorney general decision as provided by Section 552.301 and provide the re-questor with the information required by Sections 552.301(d) and (e-1), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information.
In these two consolidated cases, the City of Dallas received requests for information that included its attorney-client communications, but it failed to request the Attorney General’s decision within ten business days as section 552.301 requires. Instead, the City waited until the twenty-sixth business day after receiving one request and tye forty-ninth business day after receiving the other. According to the record, the City never provided any explanation for having missed the deadlines.
With regard to the Court’s first element, the Court makes no effort to define how “pressing” is sufficient. Because the Act does not define the term “compelling” or the phrase “compelling reason,” we must apply their common, ordinary meanings unless “a different or more precise definition is apparent from the term’s use in the context of the statute.” R.R. Comm’n of Tex. v. Gulf Energy Expl. Corp.,
The Court’s second element recognizes that the determination of whether a reason is compelling requires balancing competing interests. Ante at 259. Although this is true, the presumption that section 552.302 imposes ensures that the scales are not evenly balanced. Instead, as the federal common-law cases on which the Court relies recognize, the balancing test uses “scales [that] tilt decidedly toward transparency.” Nat'l Org. for Marriage v. McKee,
Considering the statutory context and the term’s common meaning, a “compelling reason” to withhold public information despite the government’s failure to timely assert an exception is a reason that, under all the facts and circumstances, is so important and urgent that reasonable minds can only conclude that it clearly outweighs the Act’s fundamental policy of ensuring that the public can promptly obtain its information from its government. See Wells,
II.
The City’s Proposed Compelling Reasons
In these cases, the City asserts three reasons to justify withholding the informa
A. Section 552.101: “confidential by law”
The City first contends that a compelling reason exists because section 552.101 excepts attorney-client communications from the Act’s disclosure requirement. Id. § 552.101 (providing a general exception for information that is “considered to be confidential by law, either constitutional, statutory, or by judicial decision”).
The Attorney General contends that section 552.101 does not apply to attorney-client communications because they are subject only to “disсretionary” or “permissive” confidentiality, in the sense that a governmental body may withhold its own attorney-client communications but is not prohibited from voluntarily disclosing them. See Tex. Att’y Gen. Op. ORD-676 at 2 (explaining that the privilege “rests with the client governmental body, and like any client, the governmental body is free to waive it”); see also Tex. Att’y Gen. Op. ORD-522 at 4 (1989) (distinguishing “information ‘deemed confidential by law’” from permissive exceptions “that protect information that may be disclosed at the discretion of governmental bodies”). Instead, the Attorney General asserts that only section 552.107 excepts attorney-client communications from required disclosure. See Tex. Gov’t Code § 552.107 (excepting “information that the attorney general or an attorney of -a political subdivision is prohibited from disclosing because of a duty to the client under the, Texas Rules of Evidence or the Texas Disciplinary Rules of Professional Conduct”). Alternatively, if section 552.101 broadly encompasses permissive as well as mandatory confidentiality, the Attorney General argues that only
The Court does not decide whether section 552.101 excepts attorney-client communications or itself constitutes a compelling reason as the City contends, concluding instead that the existence of a compelling reason “does not turn on whether the attorney-client privilege falls within one statutory exception or another.” Ante at 255. According to the Court, “the attorney-client privilege, which is protected by one or more statutory exceptions to public disclosure, protects and advances interests that provide independently compelling reasons to withhold privileged information unless confidentiality has been waived.” Ante at 256 (footnote omitted). I reject the City’s argument because the existence of a compelling reason does not turn merely on the basis for any of the Act’s exceptions at all.
Construing sections 552.301 and 552.302 together within their statutory context, the Act permits the government to withhold public information despite its failure to timely and properly request the Attorney General’s decision only if an exception applies and a compelling reason exists. Under the Act, public information is always “presumed to be subject to required public disclosure,” and only an exception can overcome that presumption. Tex. Gov’t Code §§ 552.021, .301(a), .302; see also id. § 552.306 (providing that the Attorney General’s role is to determine “whether the requested information is within one of the exceptions”). Nothing in section 552.302 or the remainder of the Act suggests that a governmental body can withhold information by showing a compelling reason instead of an applicable exception after it failed to timely comply with section 552.301. That construction would ignore the relationship between the two sections and encourage the government to intentionally refuse to comply with section 552.301 whenever it concludes that no exception applies.
Instead, when a governmental body fails to timely and properly request the Attorney General’s decision “about whether the information is within [an] exception,” id. § 552.301(a), section 552.302 imposes an additional presumption that applies even though an exception overcomes the foundational presumption favoring disclosure. Although an applicable exception overcomes the Act’s foundational presumption of openness, the governmental body’s failure to timely and properly assert that exception results in a new presumption that the information remains “subject to required public disclosure and must be released unless there is a compelling reason to withhold the information.” Id. § 552.302. Section 552.302, in other words, imposes an additional requirement—not an alternative requirement—that applies when a governmental body fails to timely assert an applicable exception as section 552.301 requires. As a result, the mere fact that one of the Act’s exceptions applies or that a compelling reason exists is insufficient to overcome the government’s failure to timely and properly assert an exception, because the Act requires both. Id.
The Court agrees that the Act always requires an exception to avoid disclosure and that establishing a compelling reason without also establishing an applicable exception is insufficient. Ante at 256 (affirming that “even under the compelling-reason standard, information cannot be withheld unless a statutory exception applies, because public information remains public unless it is expressly excepted from disclosure.”); see also ante at 264 (“[SJection 552.302’s ‘compelling reason’ safeguard ap
The Court goes on, however, to conclude that an exception and a compelling reason are never mutually exclusive when the attorney-client privilege is at stake, and that the exception for attorney-client communications is categorically and always a compelling reason, regardless of the facts and circumstances of the particular case. Yet the Court can provide no statutory basis for deciding when the interests that an exception protects are categorically compelling and when they are not. Instead, based solely on its own view of the attorney-client privilege’s importance, the Court concludes that the privilege—which the Act treats as the basis for an exception under section 552.301—also constitutes a compelling reason under section 552.302. Ante at 277. When the attorney-client privilege is at issue, in other words, the Court is willing to render the compelling-reason requirement “a nullity.” Ante at 256.
Contrary to the Court’s approach, the Act treats each of its exceptions equally. Each exception applies only if a particular set of facts exists.
That “something more” is a “compelling reason,” and whether it exists depends on the particular facts and circumstances of each individual case. See, e.g., Nixon v.
In other words, establishing an exception does not end the analysis; it begins it. The same facts'and сircumstances supporting an exception can also be relevant to establishing a compelling reason, but the compelling-reason analysis requires more than a generalized claim. It requires proof of particular circumstances such that no reasonable person would demand the documents’ production. Thus, regardless of whether section 552.101 excepts privileged attorney-client communications from the Act’s disclosure requirement as the City contends, the fact that information is excepted under any of the Act’s exceptions does not itself provide a compelling reason under section 552.302.
B. The Attorney-Client Privilege
The City next argues that the fact that the attorney-client privilege protects the communications is itself a compelling reason to withhold the communications despite the City’s failure to timely request the Attorney General’s decision. The Court agrees, holding that “absent waiver, the interests protected by the attorney-client privilege are sufficiently compelling to rebut the public-disclosure presumption that arises on expiration of the [Actj’s ten-day deadline.” Ante at 250. To reach this result, the Court attempts to distinguish between an exception to disclosure and the “policies and interests that animate” the exception, holding that the policies and interests can constitute a compelling reason even if the exception itself cannot. Ante at 278. Because the Act treats the
1. The Act’s approach to balancing the competing interests
The Court bases its conclusion on its view that the interests the attorney-client privilege protects are “of utmost importance.” Ante at 265. Like the Court, the Act recognizes the importance of these interests, but it protects them by excepting privileged attorney-client communications from its disclosure requirement. As the Court itself explains, the Act
addresses the competing values of transparency and the need for confidentiality by excepting confidential attorney-client communications from mandatory public disclosure. In doing so, the [Act] recognizes the importance of the attorney-client privilege and affirms that the public interest is best served when those sworn to protect it are guided by fully informed legal advice in conducting public affairs.
Ante at 270 (emphasis added).
In this and every other relevant sense, the Act treats confidential attorney-client communications the same as all other confidential information. The Act provides numerous specific exceptions for particular types of confidential informatiоn,
But the Act also recognizes and protects the broader interests that support the public’s right to promptly access public information. The Act’s very existence is a tribute to the “fundamental philosophy” that “government is the servant and not the master of the people,” and “that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees, ... so that they may retain control over the instruments they have created.” Tex. Gov’t Code § 552.001(a). The Act protects these “fundamental” interests by requiring governmental bodies to respond to a request for public information “promptly, ... as soon as possible under the circumstances, ... within a reasonable time, [and] without delay.” Id. § 552.221(a).
An inherent conflict exists between the interests in granting an attorney-client privilege to the government and the interests in granting the public prompt access to public information. Granting evidentiary privileges to the government necessarily undermines the goal of ensuring that the “people remain in control of their government” by creating a risk “that a broad array of materials in many areas of the executive branch will become ‘sequester[ed]’ from public view.” In re Bruce Lindsey,
2. The public’s interest in prompt disclosure
Applying its balancing test, the Court concludes that the only public-information interest that the government’s failure to timely assert the privilege implicates is the public’s interest in “expediency.” Ante at 265; see also ante at 264 (holding that the
This analysis ignores the value the Act expressly and repeatedly places on what the Court calls “expediency.” The Act contains numerous provisions that demonstrate the importance it places on the public’s interest in prompt access to public information. The Act expressly recognizes that the public is entitled “at all times to complete information about the affairs of government.” Tex. Gov’t Code § 552.001(a) (emphasis added). Its foundational provision requires governmental bodies to make public information “available to the public at a minimum during the normal business hours of the governmental body.” Id. § 552.021 (emphasis added). When the government receives a request for public information, the Act expressly requires that it provide the information “promptly,” which the Act defines to mean “as soon as possible under the circumstances, that is, within a. reasonable time, without delay.” Id. § 552.221(a). Numerous other provisions also demonstrate the Act’s recognition that, when it comes to the public’s right to public information, time is of the essence:
— If the government cannot provide information within ten business days after the date the information is requested, it must “certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication,” id. § 552.221(d);
— If the government determines that responding to the request requires “programming or manipulation of data,” it must provide the requestor written notice of that determination within twenty days after it receives the request, id. § 552.231;
— If the government determines that its costs to comply with the request will exceed a predetermined limit, it must provide a written estimate to the re-questor “on or before the 10th day after the date on which the public information was requested,” id. § 552.275(e);
— If the request seeks a third party’s proprietary information that may be subject to an exception, the government “shall make a good faith attempt to notify that person ,.. within a reasonable time not later than the 10th business day after” it receives the request, id. § 552.305(d);
— If a person files a complaint with a district or county attorney complaining of a violation of the Act, the district or county attorney shall respond to the complaint “[bjefore the 31st day after the date a complaint is filed,” id. § 552.3215(g);
— The district or county attorney must notify the government before filing suit, and to avoid that suit, the government must cure the violation “before the fourth day after the date” the government receives the notice, id. § 552.3215©;
— If the government believes the Act еxcepts requested information from its disclosure requirement, it must ask the Attorney General to decide whether an exception applies “withina reasonable time but not later than the 10th business day after the date of receiving the written request,” id. § 552.301(b);
— If the Attorney General notifies the government that he needs additional information to make his decision, the government “shall submit the necessary additional information to the attorney general not later than the seventh calendar day after the date the notice is received,” id. § 552.303(d);
— The Attorney General must “promptly render a decision ... determining whether the requested information is within one of the exceptions,” not “later than the 45th business day after” the Attorney General received the request for decision, id. § 552.306(a); and
— If the government decides to sue to challenge the Attorney General’s decision, it must “bring the suit not later than the 30th calendar day after” it receives the Attorney General’s decision; otherwise, it “shall comply with” the Attorney General’s decision, id. § 552.324(b).13
In short, when it comes to the public’s right to public information, the Act recognizes that access delayed is usually access denied. As the federal-court decisions on which the Court relies acknowledge, “a necessary corollary to the presumption [in favor of government transparency] is that once found to be appropriate, access should be immediate and contemporaneous. ... To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression.” Grove Fresh Distrib., Inc. v. Everfresh Juice Co.,
In light of the Act’s repeated emphasis on timely access, the Court’s attempt to minimize that interest by suggesting that the requestor or the Attorney General can simply file suit to compel disclosure borders the absurd. Ante at 263. By requiring the government to’timely seek the Attorney General’s decision on whether an exception applies, the Act seeks to avoid the very delays that such a suit will inevitably cause. “Indeed, for the presumptive right
Section 552.302’s compelling-reason requirement itself demonstrates the importance the Act places on the public’s interest in prompt access to public information. Section 552.302 protects that interest by imposing the compelling-reason requirement as a consequence for the government’s failure to timely assert an exception. The Court asserts that “the interests protected by the attorney-client privilege ... are demonstrably more compelling” than the public’s interest in prompt access to public information because the consequences of disclosure are “irremediable” and the public “has no right of access to privileged information in the first instance and only a rebuttable presumption of access in the second.” Ante at 265. But the same is true for all information the Act excepts from its disclosure requirement. Section 552.302’s compelling-reason requirement only applies when an exception applies and “the public has no right of access to the information in the first instance and only a rebuttable presumption of access in the second.” Section 552.302 places such great weight on the public’s right to prompt access that it requires disclosure of information even though it is privileged, confidential, and excepted, unless a compelling reason exists.
Under the Court’s reasoning, the interests that support any of the Act’s exceptions will always outweigh the public’s interest in prompt access, because the public never has “a right of access” to excepted information, and the release of that information will always result in a loss of confidentiality that is “irremediable.” Under the Court’s approach, every exception always satisfies the compelling-reason requirement and thus nullifies the requirement completely. The Act, however, places such great value on prompt access to public information that it requires the information to be disclosed unless a compelling reason exists, even though the public has no right to the information and the loss of confidentiality would be irremediable.
3. The government’s interest in the attorney-client privilege
According to the Court, the interests that support the attorney-client privilege always and necessarily outweigh the public’s interest in prompt access to public information because the privilege protects both the “free flow of information between attorney and client” and “the broader societal interest of effective administration of justice.” Ante at 250; see also ante at 260 (explaining that the privilege’s purpose is to “encourage clients to make full disclosure to their attorneys” (quoting Fisher v. United States,
For this reason, the Court’s reliance on a lack of “waiver” under its own common-law and procedural rules is misplaced. See ante at 250 (holding that the attorney-client privilege is a compelling reason under section 552.302 unless it has been waived, and the failure to meet section 552.301’s deadline “does not, in and of itself, constitute waiver”).
Ultimately, the Court concludes that the attorney-client privilege is always independently a compelling reason that outweighs the public’s interest in prompt access to public information because the harm that results from a loss of the privilege “threatens the foundation of a justice system that thrives on full and candid legal representation.” Ante at 266. According to the Court, if the Act requires the government to disclose its attorney-client communications when its employees miss a deadline through mere oversight, mistake, or inadvertence, “governmental entities might well choose to forego fruitful self-analysis and decide not to seek needed legal advice.” Ante at 266 (quoting City of Georgetown,
The parade of horribles the Court describes might well seem compelling, if only there were some factual basis to support the Court’s dire predictions. Reality, however, belies such sophistry. For more than twenty-two years, Texas Attorneys General have issued hundreds of decisions requiring governmental bodies to disclose their attorney-client communications, holding that the “mere fact that the information is within the attorney-client privilege ... does not alone constitute a compelling reason to withhold the information from public disclosure” under section 552.302.
4. Applying the Act’s approach
Because neither an exception nor the interests it supports can independently qualify as a compelling reason that outweighs the public’s interest in prompt access to public information under the Act, I agree with the Attorneys General that the attorney-client privilege alone cannot and does not constitute a compelling reason under section 552.302. This does not mean that section 552.302 could never permit the government to withhold attorney-client communications if the government fails to timely comply with section 552.301. As discussed, whether a compelling reason exists depends on the facts and circumstances of each case. I thus agree with the Court that “the public’s interest in maintaining confidentiality [of the government’s attorney-client communications] must be factored into the analysis,” ante at 265, but the compelling-reason standard requires that factoring to occur in each individual case, because the public’s interest and the harmful effects of disclosure will vary from case to case.
In most cases, the relevant facts and circumstances will also include the government’s diligence (or lack thereof) and the reasons for its failure to timely and properly assert the privilege. See, e.g., State v. Naylor,
The Court fears that requiring “public disclosure of confidential attorney-client communications as an automatic—and irremediable—sanction for missing a statutory deadline ... would be a jurisprudential course fraught with peril.” Ante at 266. The course the Court describes, however, is a legislative course, not merely a jurisprudential one. Even if reality justified the Court’s unfounded fears, we are not at liberty to substitute our own preferred
C. Harm to the City’s interests
Finally, in one of the two cases before us today (Cause No. 15-0073), the City contends that it demonstrated a compelling reason by establishing that the disclosure of its attorney-client communications would “likely inflict substantial harm to the public or the entity.” Because the Court concludes that the attorney-client privilege itself provides a compelling reason, it does not reach this argument. Ante at 266 n.117. I would reach the argument and conclude that the City has failed to establish sufficient harm in this case.
In support of its argument, the City relies on a summary-judgment affidavit in which an assistant city attorney testified that disclosure would “cause substantial harm to the City’s bargaining position on a multi-million dollar long-term transaction.” According to the affidavit, the communications include “critical information” about issues “critical to on-going negotiations” over a landfill gas lease, identify the lease’s “significant provisions” that the City believes “need to be corrected,” and disclose “the mechanics” of how the City “decides how and whether to settle disputes.” The affiant asserts that disclosure of the information would harm the City’s bargaining position in these negotiations and would “prejudice the City in future disputes.” Because the Attorney General did not submit any evidence controverting these factual assertions, the City argues that it established a compelling reason to withhold the information as a matter of law.
The Attorney General disagrees. Consistent with his predecessors’ long-held view that only mandatory confidentiality and harm to a third party can be a compelling reason under section 552.302, the Attorney General argues that harm to the interests of the governmental body that failed to comply with section 552.301 can never qualify as a compelling reason under section 552.302. Compare Tex. Att’y Gen. Op. ORD-676 at 12 (2002) (“Harm to the interests of the governmental body that received the request is not a compelling reason.”) with Tex. Att’y Gen. Op. ORD-586 at 3 (1991) (stating that thе “need of a governmental body, other than the body that has failed to timely seek on open records decision, may, in appropriate circumstances, be a compelling reason for non-disclosure”). According to the Attorney General, protecting the privilege of a party who had the opportunity to claim it but failed to do so cannot constitute a compelling reason because it does nothing to further the purpose of the attorney-client privilege.
I agree with the Attorney General that harm to a third party’s interest can be a compelling reason under section 552.302.
But based on section 552.302’s actual language, harm to a governmental body’s own interests can also qualify as a compelling reason. As explained, section 552.302’s plain language permits withholding despite noncompliance not for any specific reason or type of reason, but for any “compelling reason.” Applying the statute’s plain language despite the Attorney General’s longstanding construction to the contrary, see Pretzer v. Motor Vehicle Bd.,
In this case, however, the City’s evidence of harm to its own interests, although uncontroverted, fails to provide a compelling reason to withhold the information. Tex. Gov’t Code § 552.302; see Nat. Gas Pipeline Co. of Am. v. Justiss,
But other than the affidavit’s broad assertion that the resulting harm would be “substantial,” the City has provided no evidence of the extent of harm the disclosure would cause. The affidavit explains that the City is renegotiating a “multimillion dollar long-term transaction,” but makes no effort to describe the extent to which disclosure would weaken the City’s position or harm the City’s interests. To demonstrate a compelling reason based on an argument that release of public information would harm the governmental body’s interests, the governmental body must provide sufficient facts regarding the nature and extent of the alleged harm to permit the Attorney General or the courts to balance that harm against the public’s interest in prompt access to public information. See, e.g., Kamakana v. City & Cnty. of Honolulu,
The City’s vague assertion that release of the information at issue would cause “substantial harm” is insufficient to support the conclusion that the alleged harm creates a compelling reason to withhold the information under section 552.302. See Elizondo v. Krist,
III.
Conclusion
The Court contends in these eases that the attorney-client privilege is essential and vital to the operation of our judicial system. The Texas Public Information Act agrees, but it exists to promote the “fundamental philosophy” that the public is entitled to promptly access “information about the affairs of government and the official acts of public officials and employees,” which is essential and vital to our “consti
Relying on the Act’s plain language, I conclude that a “compelling reason” is one that is so important and urgent that reasonable minds can only conclude that it clearly outweighs the Act’s fundamental policy of ensuring that the public can promptly obtain public information from its governmental bodies. Because the Act requires both that an exception apply and that a compelling reason exist, neither the Act’s exceptions nor the privileges and confidentiality that trigger an exception are sufficient alone to establish a compelling reason. The Act does not support the Attorney General’s position that only certain reasons, or certain types of reasons, can be “compelling,” and instead supports the City’s contention that, under some circumstances, harm to the governmental body’s own interests can present a compelling reason. In these cases, however, the City has failed to demonstrate such harm.
Because the City has failed to demonstrate any compelling reason to withhold the attorney-client communications at issue, the Act requires the City to disclose them. Because the Court holds otherwise, I respectfully dissent.
. Contrary to the Court's assertion, I do not "dismiss[] the importance of the privilege in the government context as mere hyperbole." Ante at 260. I acknowledge the privilege’s importance, just as the Act does by excepting privileged attorney-client communications from its disclosure requirement. What I find hyperbolic is the Court’s suggestion that governmental bodies will stop relying on legal advice unless we hold that the privilege is itself a compelling reason to withhold information when a governmental body fails to timely and properly assert the exception. As discussed below, history has proven otherwise.
. It is undisputed that the government’s attorney-client communications are "public information” under the Act. "Public information” includes all information "that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business,” either (1) by a governmental body, (2) for a governmental body, if the governmental body owns the information, has a right of access to the information, or "spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information,” or (3) "by an individual officer or employee of a governmental body in the officer’s or employee’s official capacity and the information pertains to official business of the governmental body.” Tex. Gov’t Code § 552.002(a).
. It is undisputed that the City of Dallas is a governmental body under the Act. See Tex. Gov’t Code § 552.003(l)(A)(iii) (including in definition of “governmental body” "a municipal governing body in the state").
. The Court criticizes the Attorney General for taking a “constrained” and “restrictive” view of the statutory language,” ante at 257, 270, yet that is exactly what the Act instructs the Attorney General and this Court to do.
. While the Court acknowledges that the Act imposes a deadline for asserting a "statutory exception,” it contends that there is "no statutory deadline for asserting the attorney-client privilege.” Ante at 269 n.132. To the contrary, section 552.301 imposes both a ten-day deadline for asserting the applicable exception and a fifteen-day deadline for asserting the reason the exception applies. Here, the City missed both deadlines, and thus failed to timely and properly assert the privilege, regardless of how "jealously” it has attempted to guard the privilege thereafter.
. At oral argument before this Court, the City’s attorney asserted that the City simply "missed the deadlines in both of these instances. It was inadvertence, I believe. There’s ... nothing in the record to indicate anything else."
. Similarly, Black’s defines “compel” as to "cause or bring about by force, threats, or overwhelming pressure” and—within the legal context—to "convince (a court) that there is only one possible resolution of a legal dispute.” Compel, Black's Law Dictionary (10th ed. 2014) (emphasis added).
. Consistent with their common, ordinary meanings, Texas statutes repeatedly use the terms "compel” and "compelling” to refer to court orders, subpoenas, statutes, and other authorities that effectively demand and require their intended result. See, e.g., Tex. Bus. & Com. Code §§ 15.10(g)(5)(E) (referring to court order "compelling” oral testimony); .13(a), (b), (d) (same); Tex. Civ. Prac. & Rem. Code § 171.021(c) (referring to court order "compelling” arbitration); Tex. Code Crim. Proc. art. 46C. 104(a) (referring to court order "compelling” testimony); Tex. Elec. Code §§ 221.009(a) (referring to court order "compelling” voter to reveal vote); 231.006 (referring to subpoena "compelling” production of election records); Tex. Est. Code § 309.056(c)(3) (referring to order compelling production of estate inventory); Tex. Fam. Code § 157.372 (referring to court order "compelling” return of kidnapped child); Tex. Fin. Code §§ 35.204(a) (referring to court or
. Although the City acknowledges that the rules of evidence currently provide the basis for the confidentiality of attorney-client communications, see generally Tex, R. Evid. 503, it contends that the rules merely codify judicial decisions that first recognized the attorney-client privilege as a matter of common law. See In re City of Georgetown,
. If, for example, the facts establish that requested information is in a government employee’s personnel file and its "disclosure would constitute a clearly unwarranted invasion of personal privacy,” section 552.102 excepts it from the Act's disclosure requirement. Tex. Gov’t Code § 552.102(a). If the information relates to "litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party,” section 552.103 excepts it from disclosure, Id. § 552.103(a). And if the information "deals with” the “prosecution of crime” and its release would "interfere with” that prosecution, section 552.108 excepts it from disclosure. Id. § 552.108(a).
. Texas Attorneys General have repeatedly held that a compelling reason exists only if either (1) the information is subject to "mandatory” confidentiality, or (2) release of the information would implicate or harm a third party’s interests. See, e.g., Tex. Att’y Gen. Op. ORD-676 at 1 (2002); Tex. Att'y Gen. Op, ORD-630 at 2 (2002); Tex, Att’y Gen. Op. ORD-150 at 2 (1977). But the Act’s plain language limits the qualifying reasons not to any specific reasons or types of reasons, but to any reason that is “compelling.”- We cannot judicially amend this plain language to limit the Act’s scope, despite the Attorney General’s office’s longstanding practice of doing so.
. See Tex. Gov't Code §§ 552.102 (certain personnel information); .1081 (certain information regarding those who participate in the execution of a convict); .1085 (sensitive crime scene images); .109 (certain private "correspondence or communications of an elected office holder”); .110 (trade secrets and certain commercial or financial information); .113 (geologicаl or geophysical information); .114 (student records); .115 (birth and death records); .117 ("certain addresses, telephone numbers, social security numbers, and personal family information”); .1175 (certain personal identifying information of peace officers, county jailers, and others); .1176 (certain information regarding members of tire State Bar); .118 ("information on or derived from an official prescription form or electronic prescription record filed with the Texas State Board of Pharmacy”); .119 (certain photographs of peace officers); .120 (certain rare books and original manuscripts); .121 (certain documents held for historical research); .123 (the name of an applicant for chief executive officer of an institution of higher education); .1235 (the identity of a private donor to an institution of higher education); .124 (the records of a library or library system); .126 (the name of an applicant for superintendent of a public school district); .127 (personal information relating to participants in a neighborhood crime watch organization); .128 (certain information submitted by a potential vendor or contractor); .129 (certain motor-vehicle inspection information); .130 (certain motor-vehicle records); .131 (certain economic-development information); .132 (crime victim or claimant information); .1325 (certain information in a crime-victim impact statement); .133 (public power utility competitive matters); .134 (certain information relating to an inmate of the Department of Criminal Justice); .135 (certain information held by a school district); .136 (credit card, debit card, charge card, and access device numbers); .137 (certain email addresses); .138 (information regarding a family violence shelter, victims of trafficking shelter center, or sexual assault program); .139 (information related to security or infrastructure issues for computers); .140 (military discharge records); .141 (information in an application for a marriage license); .142 (records subject to a nondisclosure order); .143 (certain investment information); .145 (the Texas no-call list); .146 (certain communications with legislative budget board employees); .147 (social security numbers); .148
. Many other provisions impose similar time deadlines that apply in specific circumstances. See, e.g., id. §§ 552.008(b-2) (requiring Attorney General to establish briefing deadlines for disputes involving information sought for legislative purposes and to decide such disputes “not later than the 45th business day after the date the attorney general received the request for a decision”); .024(c-1) (same for disputes over redacted information regarding government employees); .130(d) (same for redacted information regarding motor vehicle records); .136(d) (same for redacted information regarding credit cards and similar access cards); .138(d) (same for redacted information regarding family violence and sexual assaults); see also id. §§ 552.1085(f) (requiring government to notify next of kin regarding a request for a sensitive crime scene image not "later than the 10th business day after” the government receives the request); . 1175(g) (same for disputes over redacted information regarding peace officers, judges, and others); .269(a) (requiring government to “promptly” adjust the amount charged for copies of information in accordance with the Attorney General's determination).
. See also Lugosch,
. The Court asserts that, when the government itself is the client whose communications are at issue, the privilege applies with “special force" because it protects the public’s interest by encouraging government officials to seek legal advice when formulating public policy and conducting government business "on behalf of the public.” Ante at 260 (quoting In re Cnty. of Erie,
. See also ante at 277 (holding that the privilege protects interests that are "independently compelling reasons to withhold privileged information unless confidentiality has been waived”).
. Contrast Tex. Gov't Code §§ 552.0038(f) (providing that an individual "waives the confidentiality” of recоrds held by a public retirement system if the records become "part of the public record of an administrative or judicial proceeding related to a contested case”); .008(b) (providing that a governmental body that releases information to a legislative member, agency, or committee “does not waive or affect the confidentiality of the information” or "waive the right to assert exceptions to required disclosure of the information in the future”); .134(d) (providing that the release of the information regarding a prison inmate to certain eligible entities for law-enforcement purposes "does not waive the right to assert in the future that the information is excepted from required disclosure”); .156(d) (providing that the disclosure of information regarding an agency’s continuity of operations plan "to another governmental body or a federal agency ... does not waive or affect the confidentiality of that information”); see also id. § 552.326(a) (providing generally that "the only exceptions a governmental body may
. The Court incorrectly declares that I "repudiate” the "underlying rationale” of this construction of section 552.302. Ante at 269, To be clear, I do not agree with the Attorneys General's long-held conclusion that only two reasons (mandatory confidentiality and harm to a third party) can ever be compelling, see supra n. 11, but I do agree with their holding that the mere fact that information is attorney-client privileged does not constitute a compelling reason under section 552.302.
. See also, e.g., Tex. Att’y Gen, Op. OR2016-26762 at 1 (2016); Tex. Att’y Gen. Op. OR2016-26708 at 1 (2016); Tex. Att’y Gen. Op. OR2016-26782 at 2 (2016); Tex. Att’y Gen. Op. OR2016-26355 at 1 (2016); Tex. Att’y Gen. Op. OR2016-26022 at 1 (2016); Tex. Att’y Gen. Op. OR2016-25036 at 1 (2016); Tex. Att’y Gen. Op. OR2016-24517 at 1 (2016); Tex. Att’y Gen. Op. OR2016-24334 at 2 (2016); Tex. Att’y Gen, Op. OR2016-23955 at 2 (2016); Tex. Att’y Gen. Op. OR2016-23689 at 1 (2016); Tex. Att’y Gen. Op. OR2016-23232 at 2 (2016); Tex. Att’y Gen. Op, OR2016-22178 at 1 (2016); Tex. Att’y Gen. Op. OR2016-21609 at 2 (2016); Tex, Att'y Gen. Op. OR2016-20676 at 1
. Although I agree that a third party’s interests can constitute a compelling reason under section 552.302, I do not agree that a third party’s interests will always provide a compelling reason. As explained above, the determination of whether a compelling reason exists must depend on the particular facts and circumstances of each individual case. Thus, to respond to the Court’s concern that it should be permitted to consider a "substantial threat of physical harm" to an employee or the "policy of preventing bioterrorism’’ when deciding whether a compelling reason exists, see ante at 268, I agree that the Court should consider such facts, just as it should consider the harm that would result from disclosing
. See, e.g., Tex. Gov’t Code §§ 552.102(a) (excepting information in a personnel file when its disclosure “would constitute a clearly unwarranted invasion of personal privacy”); .104 (certain information related to competition or bidding); .109 (information when release would "constitute an invasion of privacy”); .1081 ("identifying” information regarding persons who participate in a convict’s execution); .1085 (sensitive crime scene images); .109 (certain private correspondence or communications of an elected office holder); .110 (third party’s trade secrets and commercial or financial information); .114 (students’ education records); .115 (birth and death records); .117 (certain persons’ addresses, telephone numbers, social security numbers, and personal family information), .1175 (certain persons' personal identifying information); .1176 (certain persons’ home addresses, home telephone numbers, electronic mail addresses, social security numbers, and birth dates); .123 (the name of an applicant for chief executive officer of an institution of higher education); .1235 (the identity of a private donor to an institution of higher education); .126 (the name of an applicant for superintendent of a public school district); .127 (personal information of participants in a neighborhood crime watch organization); .132 (information regarding crime victims); .136 (credit card, debit card, charge card, and access device numbers); .137 (certain email addresses); .138 (information regarding a family violence shelter, victims of trafficking shelter center, or sexual assault program); .140 (militaiy discharge records); .141 (information in an application for a marriage license); .147 (social security numbers); .148 (certain personal information pertaining to a minor); .149 (certain records received from a private entity); .154 (the name of an applicant for certain executive positions of the Teacher Retirement System).