Ken PAXTON, Attorney General of Texas, Petitioner, v. CITY OF DALLAS, Respondent
No. 15-0073
Supreme Court of Texas.
Argued September 14, 2016. OPINION DELIVERED: February 3, 2017
247
Barbara E. Rosenberg, Christopher J. Caso, James B. Pinson, Warren M. Ernst, for City of Dallas.
Justice Guzman delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Willett, Justice Lehrmann, Justice Devine, and Justice Brown joined.
Recognizing that government is founded on the authority of the people and “instituted for their benefit,”1 the Texas Public Information Act (PIA) favors an open and transparent government to ensure the people “retain control over the instruments they have created.”2 But the PIA simultaneously recognizes that public interests are best advanced by shielding some infor
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.7 The Legislature‘s choice to exempt information protected by the аttorney-client privilege embodies the fundamental understanding that, in the public sector, maintaining candid attorney-client communication directly and significantly serves the public interest by facilitating access to legal advice vital to formulation and implementation of governmental policy. Full and frank legal discourse also protects the government‘s interest in litigation, business transactions, and other matters affecting the public.8 Depriving the privilege of its force thus compromises the public‘s interest at both discrete and systemic levels.9
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 other-wise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.”10
Under the PIA, the public has a right of access to “public information,”11 a broadly defined term.12 A governmental body must “promptly” produce public information after receiving a request for disclosure, meaning “as soon as possible under the circumstances, that is, within a reasonable time, without delay.”13 The prompt production of public information furthers the “fundamental philosophy” that “government is the servant and not the master of the people.”14
The right to access is not absolute, however; the Legislature incorporated into the PIA more than sixty exceptions to the public-disclosure requirement.15 Statutory exceptions range from very broad to more specific categories of information, including “information considered to be confidential by law, either constitutional, statutory, or by judicial decision,”16 attorney-client information,17 certain rare books and original manuscripts,18 various categories of records containing personal information of public employees or private citizens,19 and sensitive crime-scene images.20 “[The PIA‘s] exceptions embrace the understanding that the public‘s right to know is tempered by the individual and other interests at stake in disclosing that information.”21
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,”22 a governmental body cannot unilaterally determine that requested information is exempt from disclosure. Rather, a governmental body must request a decision from the Texas Attorney General confirming the claimed exception applies to the requested information, unless the Attorney General has previously made a determination that the information falls within a claimed excеption.23
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.”26 In such cases, either the requestor or the Attorney General can institute mandamus proceedings to compel access to the information.27 The PIA further authorizes certain local or state officials to seek declaratory or injunctive relief based on a complaint by “a person who claims to be the victim of a [PIA] violation,” but only after the governmental body is afforded notice and fails to timely cure the alleged violation.28 Subject to limited exceptions, the trial court shall award costs of litigation and reasonable attorney fees to a plaintiff who substantially prevails in a civil-enforcement suit against the governmental body.29
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.30
In comparison, “[t]he only suit a governmental body may file seeking to withhold information from a requestor is a suit ... seek[ing] declaratory relief from compliance with [an attorney general] decision.”31 Attorney fees and costs may be awarded to a party who substantially prevails in a suit instituted by a governmental body.32
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.35 Because the requests for an open-records ruling were untimely, the City concedes the requested information is presumed to be subject to disclosure unless “a compelling reason to withhold the information” exists.36 Thus, the determinative issue is whether the City met its burden to rebut the public-disclosure presumption in section 552.302 that was triggered when the City failed to timely seek an attorney general decision.
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.37 The Attorney General‘s letter rulings were based on agency precedent limiting the “compelling reason” standard to (1) information falling under an exception the Attorney General considers to impose “mandatory” confidentiality, meaning the governmental body is prohibited by law from disclosing the information and could not voluntarily disclose the information without being criminally sanctioned under the PIA,38 and (2) information that could jeopardize third parties if disclosed.39 The latter circumstance is not implicated by the public-information requests at issue, and the Attorney General asserts the former does not apply because the attorney-client privilege can be waived voluntarily, making confidentiality “discretionary,” not “mandatory.” Taking a constrained view of the statutory language, the Attorney General has determined that the mere ability to waive the attorney-client privilege automatically and categorically precludes the privilege from constituting a compelling reason to withhold confidential attorney-
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.40 The City and the Attorney General appealed the respective adverse rulings.
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-by-law 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 552.302.41
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,42 the court reached the same conclusion, reversing the trial court‘s judgment and rendering judgment for the City.43
On appeal to this Court, we consolidated the Attorney General‘s appeals for argument and disposition.44
III. 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.46 But merely establishing an exception cannot always be sufficient to rebut the public-disclosure presumption, because if the statute were so construed, the compelling-reason requirement would be rendered a nullity.
We reject, however, the notion that statutory exceptions are categorically distinct from compelling reasons and that some-thing 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,47 protects and advances interests that provide independently compelling reasons to withhold privileged information unless confidentiality has been waived.
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.48 Statutory construction presents a question of law that we determine de novo under well-established principles.49
As always, our mandate is to ascertain and give effect to the Legislature‘s intent as expressed in the statutory language.50 Further, by statutory directive, we must liberally construe the PIA to promote the policy of open government.51
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.52 Though neither of those qualifying exceptions ap-
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.53 But the Attorney General recognized only two circumstances that could satisfy that standard: “[1] the asserted exception is ‘mandatory,’ i.e., the information is confidential by law and the governmental body therefore is prohibited from releasing it, or [2] if the release of the information implicates third party interests.”54 Citing legislative history and relying on agency precedent, the Attorney General asserts the Legislature intended a similarly constrained construction of section 552.302‘s compelling-reason stan
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.‘”56 Moreover, although we may consider an agency‘s construction of a statute, “deferring to an agency‘s construction is appropriate only when the statutory language is ambiguous.”57 In like manner, legislative ratification applies only to ambiguous statutes.58 We reject the limitations the Attorney General champions because they are not textually supportable. Instead, we must
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 language59 reveals the term “compelling” connotes urgency, forcefulness, and significantly demanding concerns. “Compelling” means “[u]rgently requiring attention” and “[d]rivingly forceful“;60 “not able to be resisted; overwhelming” and “not able to be refuted; inspiring conviction“;61 and “call-
ing for examination, scrutiny, consideration, or thought.”62 A need is “compelling” if it is “so great that irreparable harm or injustice would result if it is not met“;63 a reason may be “compelling” if time is of the essence;64 a governmental interest “is compelling when the balance weighs in its favor“;65 and the public interest in maintaining confidentiality of information may be “compelling” if the interest advanced by the promise of confidentiality would be “eviscerated” by compelled disclosure.66
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.67 Federal courts have employed a “compelling reason” standard to determine whether information should be withheld from the public in an analogous context involving sealing judicial records.68 Much like the policies
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.71 In that regard, a reason to withhold information will be “compelling” only when it is of such a pressing nature (e.g., urgent, forceful, or demanding) that it outweighs the interests favoring public access to the information and overcomes section 552.302‘s presumption that disclosure is required.72
B. The Attorney-Client Privilege Protects Significant Interests
Privileges “represent society‘s desire to protect certain relationships.”73 The attorney-client privilege holds a special place among privileges: it is “the oldest and most venerated of the common law privileges of confidential communications.”74 As “the most sacred of all legally recognized privileges,” “its preservation is essential to the just and orderly operation of our legal system.”75
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.”81 “[P]ublic officials are duty-bound to understand and respect constitutional, judicial and statutory limitations on their authority; thus, their access to candid legal advice directly and significantly serves the public interest.”82
The notion that “sound legal advice or advocacy serves public ends” is not rationally debatable.83 After all, the government conducts its business on behalf of the public (residents, voters, taxpayers, and ratepayers),84 and a fully informed servant is a more capable servant. The attorney-client privilege “encourag[es] government officials formulating policies in the public‘s interest to consult with counsel in conducting that public business.”85 The privilege also protects the public fisc when the government is participating in litigation, negotiating billion-dollar contracts, and performing regulatory acts under complex regulatory schemes.
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.”86 And though the dissent dismisses the importance of the privilege in the governmental context as mere hyperbole,87 affording weight to the policies and interests that drive the privilege‘s application cannot be disregarded so handily. At a bare minimum, sound judgment tells us that the people are best served when government officials, “who are expected to uphold and execute the law and who may face criminal
The attorney-client privilege exists—and has been a cornerstone of our legal system for nearly 500 years89—because the interests protected and secured by the promise of confidentiality are not merely significant; they are quintessentially imperative. Safeguarding the privilege is important—indeed, compelling—because the consequences of disclosure are far from inconsequential. Once information has been disclosed, loss of confidentiality is irreversible.90 The bell cannot be unrung, and neither dissemination nor use can be effectively restrained.91 Unsurprisingly, the ramifications are not limited to particularized matters, but are also wrought on a systemic level.92 The PIA recognizes this by categorically excepting privileged information from the public-access requirement. More to the point, however, significant interests independent of the PIA‘s exceptions favor withholding confidential and privileged attorney-client communications from compelled disclosure.
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.93 After the client‘s attorneys had been disqualified from representing her based on their prior representation of an opposing party, the client sought possession and control of the attorneys’ work product. We held that maintaining confidentiality of the opponent‘s attorney-client communications—which had been the basis for the disqualification order—provided a “compelling reason” to deprive the client of her significant property right to the work product generated by her former counsel.94
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 narrowеr attorney-client privilege in a conflict-of-laws analysis.95 We held that “[t]he purpose of the attorney-client privilege and the reliance placed by the client on the confidential nature of the communications create[d] special reasons” to apply the broader attorney-client privilege.96
In a different context involving similar tensions between public access and the need 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.”99 Merely miss-
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.”102 Notwithstanding actual disclosure, however,
Citing
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.”106 Though we have recognized the vitality of the offensive-use doctrine, we have explained that “an offensive use waiver of a privilege should not lightly be found” because privileges “represent society‘s desire to protect certain relationships.”107 An untimely request for an attorney general decision under section 552.301 does not implicate concerns equivalent to those undergirding the offensive-use doctrine.
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,108 but section 552.302 does not. Rather than waiving interests that are protected by a statutory exception to disclosure, section 552.302‘s express language creates a presumption that disclosure is required.109 Because the presumption is re-
buttable, we conclude that missing the statutory deadline in section 552.301 does not waive the attorney-client privilege.
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,110 and (2) section 552.302‘s “compelling reason” safeguard applies only to information the PIA already excepts from disclosure.111 Accordingly, a requestor‘s general right of access to public information is not a competing interest to be weighed under the compelling-reason balancing test.112
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.114 We conclude the interests protected by the attorney-client privilege surpass that high threshold. When weighed against the need for expediency, the interests protected by the attorney-client privilege—and the irremediable consequences of disclosure—are demonstrably more compelling.
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.115 We must also consider that the attorney-client privilege is afforded to the government for the public‘s benefit; accordingly, the public‘s interest is not one-sided in this context. Because the privilege benefits both the governmental body and the people it represents, the public‘s interest in maintaining confidentiality must be factored into the analysis. Among other shared benefits, the privilege shields confidential information from third parties whose litigation or business interests are adverse to the public‘s interest, promotes a culture that incentivizes governmental bodies to seek legal advice, and allows the free flow of information between attorney and client without fear of compelled public disclosure.116
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].”117 This provision also helps secure the Attorney General‘s oversight as contemplated by the Legislature.
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.118 When a privilege as sacrosanct as the attorney-client privilege is irretrievably lost under the unexceptional facts presented here, “governmental entities might well choose to forego fruitful self-analysis and decide not to seek needed legal advice.”119
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
safeguarded by the attorney-client privilege present compelling reasons to withhold information protected by the privilege. The harm from compelled dissemination of confidential attorney-client communications is irremediable, and the consequences are visited on both the governmental body and the taxpayers it represents. Mandating disсlosure would further undermine the attorney-client privilege‘s fundamental purpose by impairing frank discourse between a governmental body and its counsel.120In 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 ameliorated by several statutory incentives and disincentives.121 Stated summarily, even when a compelling reason exists to withhold disclosure, the PIA incentivizes governmental
Although we must construe the PIA liberally in favor of granting requests for information,123 we hold that the significant interests supporting withholding confidential and privileged attorney-client communications outweigh the competing interests supporting disclosure. We therefore conclude a “compelling reason” to withhold confidential attorney-client com-
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.125 But no authority—statutory or otherwise—supports the conclusion that compelling interests motivating a statutory exception are categorically disqualified from constituting a “compelling reason” to withhold information from public disclosure. The dissent‘s proclamation pays lip service to our fundamental obligation to construe statutes as written, but is textually unsupportable and, frankly, preposterous.
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.‘”126 Second, the statute betrays no Legislative intent to ignore policies embodied in and interests protected by statutory exceptions in determining whether a “compelling reason to withhold the information” exists. Not a single word in the PIA supports a construction of section 552.302 as rendering irrelevant, for example, the policy of preventing bioterrorism that underlies section 552.151 or the interest in avoiding a “substantial threat of physical harm” to an employee or officer as advanced by section 552.152.127 In this case, our responsibility to determine whether a compelling reason exists requires that wе consider the interests protected by the attorney-client privilege—interests the dissent ignores entirely—and not disregard them out of hand merely because they were important enough for the Legislature to protect in the first instance.128
This is not, as the dissent says, “a distinction without a difference”129 because
The dissent‘s theory to the contrary turns on an interpretation of section 552.302 that requires privilege plus other compelling circumstances. Aside from engrafting 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,”132 and (2) “might exist if the governmental body establishes that substantial harm would result if the information is released.”133
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.134 No matter how many open-records decisions have applied the Attorney General‘s unduly restrictive interpretation of section 552.302—the underlying rationale of which the dissent correctly repudiates135—proof that a rule has been applied is no proof of the rule‘s impact. The reality is we do not know how twenty-two years of routinely adverse legal rulings have shaped internal discourse;
Ipse dixit, however, is not proof of anything—one way or the other—and is no substitute for 500 years of precedent.138 If it were, the same open-records decisions the dissent relies on would “prove[]” and debunk the dissent‘s own “parade of horribles” by demonstrating that even under the Attorney General‘s restrictive construction of the statutory standard, governmental bodies continued to engage the PIA‘s oversight process after missing the statutory deadline.139
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.”140 But if that criticism were fairly lodged in any direction, it would be toward those who, in the guise of interpreting a statute, invent a standard that imposes limitations that are more restrictive than the plain language allows while simultaneously denouncing a party‘s construction of the statute on the very same basis.141 By substituting inflammatory rhetoric for analysis, the dissent confirms the adage that, when neither the law nor the facts are in your favor, pound the table.
IV. 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 invaluablе 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 information 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 requestors.
Justice Boyd filed a dissenting opinion, in which Justice Johnson joined.
Justice Boyd, 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., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding);
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 behalf, the Texas Public Information Act controls.
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.1 At least twenty-two years of reality have conclusively proven the contrary. Adhering to the Act‘s requirements instead of the Court‘s policy preferences and preposterous predictions, I conclude that the attorney-client privilege cannot independently constitute a compelling reason to permit the government to withhold public information when the government fails to assert the privilege as and when the Act requires. Instead, like every other basis for one of the Act‘s exceptions, the privilege triggers an exception to the Act‘s disclosure requirement. If the government fails to timely and properly assert that exception, the Act requires that the facts and circumstances of the particular case establish a compelling reason that effectively demands that the information be withheld from the public despite the government‘s failure to timely comply with the Act. Because the City of Dallas has provided no such compelling reason in these particular cases, I would reverse.
I. Compelling Reason
The Texas Public Information Act‘s foundational provision requires the government to make public information2 “avail-
The Act provides numerous exceptiоns to its disclosure requirement. See
The Act expressly refers to section 552.301‘s ten- and fifteen-day time limits as “deadlines.”
If a governmental body does not request an attorney general decision as provided by Section 552.301 and provide the requestor 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 the forty-ninth business day after receiving the other. According to the record, the City never provided any explanation for having missed the deadlines.6 The parties agree that section 552.302 requires the City to disclose the communications unless a “compelling reason” exists to withhold them, but they disagree on whether the City established a compelling reason. The Court holds that “a reason to withhold information will be ‘compelling’ only when it is of such a pressing nature (e.g., urgent, forceful, or demanding) that it outweighs the interests favoring public access to the information and overcomes section 552.302‘s presumption that disclosure is required.” Ante at 259. The Court‘s test leans in the right direction, but it ultimately comes up short.
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., 482 S.W.3d 559, 568 (Tex. 2016) (quoting TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)). Under the common, ordinary meaning of the term, a reason that is “of such a pressing nature” so as to be compelling is one that is not just “urgent” or “forceful,” but so “urgent” and “forceful” that it effectively demands and requires the desired result. See WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 463 (2002) (defining “compelling” as “demanding respect, honor, or admiration,” and “compel” to mean to “call upon, require, or command without possibility of withholding or denying“) (emphases added).7 The term “compelling,” in other words, connotes “force or coercion, with little or no volition on the part of the one compelled.” BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 183 (2nd ed. 1995) (emphasis added).8 To be compelling, a justification must be more than simply legitimate or good; it should be persuasive to the point of demanding respect or acqui-
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, 649 F.3d 34, 70 (1st Cir. 2011). Under the Act, as under the federal common law, the presumption in favor of transparency is “no mere paper tiger,” and “if not overpowering,” is “nonetheless strong and sturdy.” F.T.C. v. Standard Fin. Mgmt. Co., 830 F.2d 404, 410 (1st Cir. 1987) (internal citation omitted). This is because the Act recognizes that, “as in so many other instances, justice is better served by sunshine than by darkness.” Id. at 413.
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, 216 Ill.Dec. 23, 664 N.E.2d at 664 (stating that compelling reasons are “forceful and impelling reasons irresistible in sense and purpose” that “clearly demonstrate” the proposed conclusion). In other words, a compelling reason is one that undeniably outweighs the Act‘s express goal of ensuring that the people (the “master“) are able to promptly obtain public information from their public “servants.”
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.
The Attorney General contends that section 552.101 does not apply to attorney-client communications because they are subject only to “discretionary” 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
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, protеcts 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.
Instead, when a governmental body fails to timely and properly request the Attorney General‘s decision “about whether the information is within [an] exception,”
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 (“[S]ection 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.10 Under the Act, those facts establish an applicable exception that the government may assert under section 552.301; and if it fails to timely and properly assert the exception and the facts that establish it, section 552.302 requires a compelling reason in addition to the exception, regardless of which exception applies. While the Court asserts that, in “some instances, important policies and interests that animate a statutory exception are compelling in their own right,” ante at 256, it then holds that the interests that animate the attorney-client privilege are compelling in all instances. Based on the Act‘s language, context, and structure, and honoring its mandate that we construe its language “liberally . . . in favor of granting a request for information,”
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. Warner Commc‘ns, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (hold-
In other words, establishing an exception does not end the analysis; it begins it. The same facts and circumstances 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 [Act]‘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 information,12 and a
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.”
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 ‘seques-ter[ed]’ from public view.” In re Bruce Lindsey, 158 F.3d 1263, 1274 (D.C. Cir. 1998) (quoting In re Sealed Case, 121 F.3d 729, 749 (D.C. Cir. 1997)). Carefully balancing these inherently conflicting interests, the Act protects the government‘s privileged attorney-client communications by providing an exception to the disclosure requirement, but it does not permit the government to unilaterally withhold communications based on that exception. To protect the broader interests in the public‘s right to promptly access public information, the government must ask the Attorney General to decide whether the exception for attorney-client communications applies within ten business days.
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.”
- 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 requestor “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 “[b]efore 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(j) ; - If the government believes the Act excepts requested information from its disclosure requirement, it must ask the Attorney General to decide whether an exception applies “within
a 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 suрpression.” Grove Fresh Distrib., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994).14
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, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976))), — (stating that the privilege preserves “the just and orderly operation of our legal system” (quoting United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997))). But the Court
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“).16 The Court concludes that the attorney-client privilege is always a compelling reason under the Act because “[m]erely missing a statutory deadline does not mirror any of the conduct our rules and case law recognize as waiving a privilege.” Ante at 263. But “our rules and case law” do not apply here, and sections 552.301 and 552.302 speak nothing of “waiver” at all.17 The government‘s fail-
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, 53 S.W.3d at 333). “Eviscerating the privilege by compelling disclosure in pursuit of ‘promptness,‘” the Court laments, “may have a wide-reaching and chilling effect on communications between governmental bodies and their counsel.” Ante at 266. These results would harm the interests of “both the governmental body and the taxpayers it represents,” and would “undermine the attorney-client privilege‘s fundamental purpose by impairing frank discourse between a governmental body and its counsel.” Ante at 267.
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 552.302.18 See Tex. Att‘y Gen. Op. ORD-630 at 5 (1994).19 Acknowledging these hundreds of
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, 466 S.W.3d 783, 793-94 (Tex. 2015) (“A litigant‘s mistaken understanding of [Texas Rule of Appellate Procedure 52.3(e)] is not a compelling reason for this Court to consider an unreviewed mandamus argument.“); In re Dorn, 471 S.W.3d 823, 824 (Tex. 2015) (holding that urgency resulting from the party‘s “own making” fails to provide a “compelling reason” for failing to first seek mandamus relief from court of appeals under Tex. R. App. P. 52.3(e)). And when a third party‘s interests are at stake, the relevant circumstances may include the efforts the third party made to protect the information once the third party received notice of the request. So if, for example, a governmental body establishes that a natural disaster or some other cause beyond its control prevented it from timely asserting its privilege when it was otherwise prepared to do so, those facts may support the finding of a compelling reason to withhold the information despite the noncompliance. Similarly, as discussed below, a compelling reason might exist if the governmental body establishes that substantial harm would result if the information is released. But the Act requires a compelling reason in addition to the fact that the information is privileged and therefore excepted from disclosure.
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 dеscribes, 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 the “need of a governmental body, other than the body that has failed to timely seek an 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 comрelling reason under section 552.302.20 I
In fact, many of the Act‘s specific exceptions protect information because a third party has a privacy, proprietary, or other interest in that information.21 And section 552.305 includes specific provisions to protect a third party‘s private interests in otherwise public information.
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.
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 “multi-million 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 nаture 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, 447 F.3d 1172, 1182 (9th Cir. 2006) (holding that magistrate did not abuse her discretion in refusing to seal records in light of “the inadequacy of the City‘s declarations, which largely make conclusory statements about the content of the documents—that they are confidential and that, in general, their production would, amongst other things, hinder . . . future operations with other agencies, endanger informants’ lives, and cast [police] officers in a false light. These conclusory offerings do not rise to the level of ‘compelling reasons’ sufficiently specific to bar the public access to the documents.“); see also Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987) (requiring party seeking protective order against discovery request to show “particular, articulated and demonstrable injury, as opposed to conclusory allegations“).
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, 415 S.W.3d 259, 265 (Tex. 2013) (holding that an affidavit was conclusory when there was a “lack of a demonstrable and reasoned basis on which to evaluate [the affiant‘s] opinion“). In short, although the City may have established a “good reason” to permit it to withhold the information, it did not establish a compelling one. The City failed to establish that disclosure would cause such harm to the City‘s own interests that the need to avoid the harm 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.
III. Conclusion
The Court contends in these cases 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.
EX PARTE Albert Junior DAWSON, Applicant
NO. WR-85,612-02
Court of Criminal Appeals of Texas.
FILED: November 23, 2016
Albert Junior Dawson, San Antonio, TX, pro se.
Jay Johannes, County Attorney, Columbus, TX, Lisa C. McMinn, State‘s Attorney, Austin, TX for the State.
Keasler, J., filed a concurring opinion, in which Keller, P.J., and Hervey, Richardson, Yeary, and Newell, JJ., joined.
This Court properly denies Albert Dawson‘s application for writ of habeas corpus in which he alleged that his ten-year term of confinement for forgery is illegal and he received ineffective assistance of counsel. After reviewing the writ record, including Dawson‘s pleadings and trial counsel‘s response to the allegations, a writ staff attorney drafted a memorandum analyzing Dawson‘s claims and recommended that Dawson‘s claims be denied based on the record.
The author of the other concurring opinion, to whom this writ application was administratively assigned, agreed with the writ staff attorney‘s recommendation that Dawson‘s application be denied because it is meritless. The same author sought the formal votes from the entire Court, but it was not legally necessary. Because this application satisfied the criterion in the