Texas Department of Public Safety v. Cox Texas Newspapers, L.P.

OF PUBLIC DEPARTMENT TEXAS

SAFETY, Petitioner, NEWSPAPERS, L.P., and

COX TEXAS L.L.C., Newspapers,

Hearst

Respondents. 09-0530.

No. of Texas.

Supreme Court 15, 2010.

Argued Sept. 1, 2011. July

Decided Murphy, P. Solicitor Gen-

Michael Asst. Ho, eral, Gibson Dunn & Crutch- James C. Morales, LLP, Dallas, David S. Office of er Texas, Deputy Attorney General of General, Attorney Clarence First Assistant Weber, Kelly Hart & Hallman Andrew Austin, LLP, Greg W. Attorney General Texas, Abbott, Attorney General of Peter Hansen, Attorney Gen- Office of the Carl Davis, eral, Attorney Bill Office of Texas, Gener- Office of Solicitor General Deane, al, Bryant Assistant At- Barbara General, Loudermilk, Office torney Brenda Texas, Matthew Attorney General of Bohuslav, Attorney T. Office of the Gener- al, Safety. Public Department for Texas Christian, Graves Gerow William PC, Austin, Moody, Dougherty Hearon & Newspapers, L.P. for Cox Texas Detert, Larsen, Sedgwick, R. Joseph Arnold, LLP, Houston, Ami- & Moran Information Foun- cus Freedom of Curiae of Texas. dation H3 JEFFERSON delivered lease aggregated expense information, Chief Justice Court, joined by of the Justice opinion warning that releasing the vouchers them- HECHT, GREEN, Justice Justice selves “necessarily reveal the num- GUZMAN, LEHRMANN. and Justice ber of officers who traveled with the gov- family,” ernor and his data that “would be protects

Our common law from public valuable information for someone who in- highly embarrassing intimate or governor] tended to cause [the harm.” facts. We must decide whether it also protects substantially information that solely Based on DPS’s letter harm. physical threatens We conclude spection of a subset of responsive doc- that it important does. Both sides raise uments, Attorney General determined questions, just about but also release of the information would public’s right about the to know how the place governor in imminent threat of government spends taxpayer money. physical danger. Accordingly, the Attor- fully Those issues could not have been ney General concluded that the informa- litigated prevailed standard that tion fell within a “special circumstances” today’s before decision. Accordingly, we aspect of common law privacy that re- appeals’ judgment reverse the court of quired DPS to withhold the submitted in- remand the case to the trial court for entirety formation its under Govern- proceedings. further ment Code section 552.101.1 Cox and Hearst, publishers newspapers Background I. DPS, question, sued seeking a writ of In separate requests, reporters rep- two mandamus to compel complete disclosure. resenting three newspapers asked the De- § See Tex. Gov’t Code After a partment Safety of Public for travel vouch- trial, bench pub- trial court found that Perry’s security ers from Governor Rick lic disclosure of the information in the request detail. One was limited to the vouchers would not put any person in im- trips Governor’s out-of-state in 2001 and minent threat of danger or create 2007; the other was not confined to a bodily substantial risk of serious harm specific period of travel. all Believing from a reasonably perceived likely threat. excepted the documents to be from disclo- The trial court ordered the clerk to issue sure under the Public Information Act a writ compelling of mandamus DPS to (specifically Government Code section produce the in their entirety. vouchers 552.101), sought ruling DPS from the Attorney General’s office. The court appeals affirmed. responsible Attorney

DPS noted that it is 398. It held that the staffing governor’s protective “special excep- General’s circumstances” detail and that it publicly does not discuss securi- tion conflicted with Industrial Foundation ty practices or the identity or numbers of the South v. Texas Industrial Accident Board, (Tex.1976). officers so assigned. DPS offered to re- 540 S.W.2d before, Attorney 1. Twice General ruled discretionary, believed that to be however, that similar vouchers had to be disclosed. Attorney General ruled that it OR2004-4723; Att'y See Tex. conjunction could not be considered in with instances, Gen. OR2002-0605. In those how- (making section 552.022. See id. ever, only exception urged DPS was Gov- certain information in vouchers unless 552.108, pro- ernment Code section which law”). expressly confidential under "other tects certain law enforcement information. appeal rulings. DPS did not either of those See 552.108. Because he Tex. Gov’t Code ch. According generally to the court of tions. See Id. at 394. Foundation “declared appeals, Industrial embrace the under- 552. Those test to be the ‘sole criteria’ two-part its know standing public’s right that the to be deemed of information the disclosure by the individual and other tempered informa- private wrongful publication disclosing at stake in that informa- terests (quoting common law.” Id. In- tion under ch. generally tion. See Tex. Gov’t Code 686). Foundation, at 540 S.W.2d dustrial 1999, Legislature In subch. C. that the first Because DPS conceded categories public excluded certain infor- (that the information of that test prong id. exceptions. mation from the See embarrassing or highly contains intimate § public 552.022. This core information is facts) satisfied, the court held not been had only currently4 protected from disclosure not be withheld that the vouchers could “ ‘expressly if it is confidential under other right privacy. on common law based law,’ Chapter meaning law other than rejected at The court also DPS’s Id. Code, of the Government which is the Pub- the Fourteenth Amendment to claim that City lic Information Act.” In re barred dis- the United States Constitution Georgetown, 53 S.W.3d that would create a closure of information 552.022(a)). § (quoting bodily harm substantial risk of serious statutes, judi- “Other law” includes likely threat. Id. at 398. perceived from a decisions, promulgated by cial and rules “[wjhether observed that court judiciary. Id. at 332. “A law does not mer- privacy interests at issue here should have to use the word ‘confidential’ to ex- question PIA is a protection under the legislature.” for the pressly impose confidentiality.” Id. at 334. for review to granted petition We parties agree that the vouchers con- right to in- public’s examine whether the tain See Tex. public information.5 limita- subject formation is to reasonable 552.022(a)(3) § “in- (including Gov’t Code production tions when its lead to account, voucher, con- formation an or physical Sup.Ct. harm.2 Tex. J. 1023 relating receipt expenditure tract to the 2010). that (Aug. DPS asserts by governmental or other funds under the com- vouchers are confidential reason, body”). For this that information mon law and under Government Code sec- Legisla- unaffected presently 418.176(a)(2).3 argu- each We address passage, days ture’s five after the court of ment in turn. decision, appeals’ except- of an amendment II. include a Does “other law” com- “if, ing public information from disclosure phys- right be free from

mon law specific pertain- under the circumstances ical harm? [government] employee or offi- cer, disclosure of the information would guarantees pub

The PIA access to information, lic subject excep- subject employee to certain or officer to a sub- 2. The the PIA other Freedom of Information Foundation of is confidential under either 30, 2011, Texas curiae brief in submitted an amicus May Leg., law. See Act of 82nd support of Cox and Hearst. R.S., (to § 2 be codified at Tex. S.B. 552.022(a)). § Gov’t Code argument longer 3. DPS no based makes right privacy. on a constitutional address, parties 5.The do not and we do not 4. The has since amended section decide, what voucher information is "core” 1, 2011, 552.022(a). September Effective what not. be withheld if it

H5 threat harm.” Act of Jesse Benton assault battery. stantial 283, 4, 3, 2009, R.S., § Williams, (Tex. ch. June 81st Benton v. Dallam (codified 2009 Tex. Gen. Laws plea Benton filed a asserting that 552.151). this ex- Because Gov’t Code he should not have to answer the com PIA, ception currently is in it does not plaint because “Williams [was] African to core information.6 apply descent, entitled law to main Gov’t tain his action.” Id. at 496-97. The Court rejected contention, though even turn, then, to argument We DPS’s constitution at time provided right “other law” includes common law descendants of Africans were not entitled physical urges be free from harm. DPS rights cases in there an to of citizens and “shall not an for which is be of physical danger. imminent threat DPS permitted permanently to remain in the protects that if the common law asserts republic of congress.” without consent personal privacy, logically protect must Id. at 497. The Court insulating held that Ensuring as physical safety well. Benton battery from Williams’s claim citizens, says DPS, physical safety of its is law, contrary be “against “primary every governm of concern institutions, spirit of our and in violation of ent,”7 preventing and disclosure that humanity.” the dictates of common physical safety deeply would threaten is The Court affirmed the trial court’s judg See, e.g., rooted the common law. Fish ment against Benton. Id. Hotel, Inc., v. Motor 424 er Carrousel (Tex.1967) 627, (observing S.W.2d have, 629 that then, Our since consistently courts

“ ‘[t]he interest freedom from intention protected right individuals’ free from plain al and unpermitted contacts with physical harm.8 Blackstone described person tiffs an action for protected by rights,” three “absolute one of which was ” commonly battery5 the tort called (quot security,” right personal “[t]he of consist- ProsseR, ing William L. ToRts 32 Law of ing of person’s legal “a uninterrupted and (3d ed.1964))). life, limbs, enjoyment body, of his his his health, reputation.” his and his 1 William physical Freedom from harm indeed a Blackstone, (1769). *125 Commentaries One hallmark of our common law. of our of an recognition The common law’s action reported involving battery earliest cases emerged for battery as a means of Supreme was decided Republic “keeping] by affording of Texas. Eli sued peace Williams substi- Legislature recently (although patients compelling passed justify 6. The is a state interest on) demonstrations”); yet not an the Governor has acted amend- restrictions on the see confidential, making ment vouchers but that also Restatement Liability (Third) of Torts: for apply amendment would not to the vouchers (stating 5 Physical & Emotional Harm 31,May at issue in this case. Act introduced intentionally physical actor who "[a]n causes 2011, S., 1, (to 82nd 1st C. art. S.B. 79A harm”); subject liability harm is for cf. be codified at Code ch. G., 275, Gov’t R’y Styron, Posey C. & v. 2 S.F. 276- (Tex. (not 1883) App. prece- 77 Comm’n Salerno, 739, 755, 7. United States v. 481 U.S. dential) (noting recog that the law common (1987). 107 S.Ct. 95 L.Ed.2d 697 " injuries nized for the absolute actions 'to assaults, batteries, See, rights persons, of as e.g., Operation v. Rescue-Nat'l Planned health, Tex., Inc., liberty wounding, injuries to the Parenthood Houston & Se. 975 ” Pleadings reputation’ (quoting 1 (holding Chitty On added)). "protecting 60)(emphasis the health clinic law to be free retribution,”9 right whether the common and we have private tute for battery claims for well. recognized physical applies common harm We See, century. e.g., Sargent more than that it does. conclude Carnes, S.W. the im- recognized has (1892) plaintiffs on (affirming judgment safety, not- portance protecting physical claim). Protection battery assault courts con- withstanding the mandate that firmly more harm is thus physical the PIA in favor of disclosure. See strue in our common law than entrenched 552.001(b). Several a relative newcomer. W. right privacy, Page Keeton, Al., grounded are in a concern Et The Law of Torts PIA (5th ed.l984)(noting “[pjrior safety, Legislature’s physical court English no or American year for informa- passage swift expressly based granted relief ever had pose that would a “substantial threat right priva- the invasion upon [of primacy harm” confirms Indeed, recog- formally cy]”). we did this interest.11 1973, although tort until nize the 1970s, Additionally, the attor- since at it appeals civil had hinted our courts of circum- ney general applied “special has previously.10 in over exception stances” disclosure Nonetheless, years we thirty-five ago, Often, special these circum- 230 cases. privacy protec- law held that the common in which disclo- stances included situations documents exempted danger place would individuals sure Found., PIA. Indus. under Attorney General harm.12 The physical have never addressed at 686. We Comm, Affairs, Bill also House on State Page see 9. W. al„ Keeton, et the Law of Torts 1237, ed.1984). (5th Leg., Analysis, H.B. 80th R.S. Tex. (2007) attorney person- (noting release of Atkinson, Billings v. 489 S.W.2d 10. See "subject attorneys includ- al information time, (Tex. 1973) (holding, the first for federal ing current and former state and right of that "an unwarranted invasion of the family judges prosecutors and their injury legal for which a privacy constitutes a personal relating their members to harm remedy granted”); Milner v. Red River will be theft”); identity possible House Co., (Tex.Civ. Valley 249 S.W.2d Pub. Comm, Affairs, Analysis, Tex. on State Bill 1952, writ) (refusing App.-Dallas to allow no (1997) (commenting Leg., 75th R.S. H.B. right privacy, recovery violation of be against the on "threats and acts of retaliation recognized ... under the cause it was "not [neighborhood watch crime or- members law, adopted when we common it,” as existed Comm, ganizations]”); for Public House (such noting that other actions as but Analysis, Safety, Bill Tex. H.B. 70th provid penalties eavesdropping) for libel and (1987) (noting that routine release R.S. protection). ed some endangers peace-officer photographs offi- lives). cers' See, (ex- §§ e.g., 552.108 11. by a enforce- empting information held See, Att’y e.g., Gen. OR2008-03289 Tex. agency prosecutor if it involves a ment address, telephone (holding that home officer), against peace 552.1176 threat number, identifying information and other address, number, (making phone home relating Rapid Transit em- to a Dallas Area lawyers and security social of Texas number special ployee within the circumstances confidential), fell (making photo- judges 552.119 requested by exception, confidential), as information was graphs peace officers employee threatened who had a former identifying (excepting 552.127 individual); Att’y Tex. Gen. OR2008- neighborhood crime participants (determining special circum- (excepting cer- organizations), watch information, withholding justified as if it would stances tain information from disclosure harm”); had city employee former physical showed that pose a threat of "substantial

H7 covering as al “special has described has characterized the circum- falling of situations in which stances” “very narrow set under the See, common law privacy information”13 would cause umbrella. e.g., release (not- Att’y OR2005-07052, Gen. at 6 to face “an imminent threat of someone ing that “information also be with- danger.” held under section 552.101 in conjunction ORD1977-0169, at 6. It must be “more with common law privacy upon a showing privacy generalized than a desire for or a ”). of certain ‘special circumstances’ But fear of harassment or retribution.” freedom from physical harm is an inde- appeals The court of held that the At- pendent protected interest un- torney “special General’s circumstances” tethered to the right privacy. exception conflicted with Industrial Foun- privacy interest protects against dation, in which we said that the “sole (intrusion four distinct kinds of invasions criteria” determining whether informa- seclusion, upon public disclosure of private exempt tion was from disclosure as “confi- facts, light false publicity, appropria- by judicial dential decision” was whether tion); physical harm is among them.14 legitimate public the information was of Keeton, (noting the Law of ToRts concern and whether publication its tort, privacy is “not one but a complex highly objectionable to a reasonable four”). We have characterized person. (citing 287 S.W.3d at 394 Indus- right as “the of an individual to be left Foundation, trial 540 S.W.2d at alone, seclusion, to live a life of to be free That is an accurate statement for assess- publicity.” Billings unwarranted v. involving matters that branch the Atkinson, 858, 489 S.W.2d 859 (the invasion-of-privacy only excep- tort (citing 77 Right Privacy C.J.S. By Foundation), tion at issue in Industrial contrast, the right common law to be free but not for other that matters are confi- physical harm is per- an interest in See, judicial dential under e.g., decision. integrity, sonal distinct from that covered Ass’n, Econ. Ctr. Justice v. Am. Ins. Keeton, by privacy the interest. the Law 337, (Tex.App.-Austin 39 S.W.3d 348 integral of Torts 40.15 It to a civil pet.) (determining no that because the society. Although mischaracterized as a protects law “[c]ommon information that exception, related cir- “special meets the traditional six-factor test for protects right cumstances” doctrine we protection,” trade-secret information was long recognized have at common law. PIA). excepted from disclosure under the appeals’ holding The court of legislative is under- Both the and executive standable, that, given Attorney that the Gener- branches have recognized as valuable staff); Foundation, threatening city made statements to 14. As we noted in Industrial Att'y (holding Tex. Supreme recog Gen. OR2004-10845 United States Court has also special justified withholding right personal priva circumstances nized a constitutional identity alleged po- cy crime victim due to in certain situations. Indus. Found. Bd., safety); tential threat victim's South v. Tex.Indus. Accident 540 S.W.2d (Tex. 1976). (holding employ- Gen. ORD1977-0169 679 ees’ could addresses be withheld because employees Hotel, showed their lives would be 15. See also Fisher v. Carrousel Motor endangered Inc., if the information was dis- (Tex.1967) (de- 424 S.W.2d 629 closed). scribing battery protecting plaintiff's as "[t]he integrity person") (quot- interest of his OR2004-10845, (3d ed.1964)). Att'y ing Prosser, 13.Tex. at 2. Law of Torts is, requested in the vouchers the information right any by put it. and Hearst would not physical supersedes Cox person’s physical imminent threat of person are not alone. Our com- branches Those always danger or create a substantial risk of seri- protect- has protects mon —and interest, bodily reasonably per- harm from a making such information ous ed—that decide, then, likely ceived threat” —the standard for the We must confidential. assessing Attorney “special wheth- General’s circumstances” appropriate standard exception urged violate that interest. test and the constitutional er disclosure would DPS, by by respectively. This determination Legisla- we are not bound While close, identical, to the decisions when we consider but not standard policy ture’s law, today the common for the common law protections by afforded we announce safety. right physical has drawn “the boundaries inform our Ford Motor Co. do decision.” the trial We have remanded case to (Tex.1998); Miles, 377, 383 v. 967 S.W.2d changed prece- court when we have our HealthTrust, Inc., v. see also Austin law has other- applicable dent or when the (Tex.1998). 400, 403 We conclude S.W.2d evolved between the time of trial and wise threat of the “substantial See, disposition appeal. e.g., Legisla- harm” standard enunciated Twyman Twyman, 855 S.W.2d the interest appropriately ture describes (Tex.1993) (remand justice in interest of the common protected under theory legal because case was tried on may be withheld if disclosure formation Court); Publ’g overruled Caller-Times physi- threat of would create a substantial Co., Commc’ns, Inc., Inc. v. Triad 552.151. cal harm. See Gov’t Code (Tex.1992) (remand in in- light We next examine that standard justice terest of because Court announced trial. produced the record standard). liability have also re- new We manded for a trial court to determine “in testimony The trial court heard any of the light opinion, whether [our] the relevant from witnesses and reviewed information should be withheld dis- Although exhibits. documents and other closure because confidential.” Indus. lump sum proferred categories DPS Found., Here, 540 S.W.2d at 686. our spent air expenses, showing amounts on time, recognizes, for the first decision rental, fare, meals, car and related lodging, safety physical common law matters, disclosing the argued that though the PIA. And even the interest in give vouchers those themselves would protected under that is well-es- tent the means to harming governor on the in our we have never before tablished accomplish goal. that DPS contended that whether or how it to the applies addressed patterns, travel information revealed PIA. is ap- We conclude that remand the number of DPS officers placement and propriate. detail, on the how far in offi advance remand, closely cers visit a location court prior governor’s On the trial must disputed arrival. evi each of the documents. publishers presented examine likely dence that the itemized vouchers and re DPS is correct one sense: disclo- lated more sure of some of the information documents disclose (and threat taxpayers, may are who vouchers create a substantial more valuable to travel) specific than line harm because it reveals physical fund do items with as- lump sum totals. The trial court conclud details about the number officers ed, gen- categorically, signed protect governor, that disclosure of their “public

H9 him, eral location in relation to their remand, harm. On the trial court Indeed, dates of travel. the vouchers di- ascertain, standard, must under this what vulge number of officers the DPS be confidential and what necessary governor’s deemed for the secu- must be disclosed. Accordingly, we re- (hotel rity, specific location and room mand the case for a new trial.

number) where the officers resided when A brief word in response to the concur security,

providing identity rence. The says concurrence our holding each officer the Department assigned to judge-made “establish exceptions to governor’s protection. Because the required PIA’s disclosure of informa past prologue, is at least when it reveals tion to the public, contradicting the unani protocol implemented DPS has for ensur- mous in our precedent, determination In government officials, we dustrial Foundation the South v. Texas agree cannot that information from prior Industrial Accident Board.” 343 S.W.3d trips could not be used to inflict future at 121. But Industrial Foundation recog harm. nized the PIA subject to the com But justify not all withholding mon law and itself adopted “judge-made” but the ultimate figure trips dollar exception to disclosure: the right priva abroad, as DPS proposes. respect, In this Found., cy. Indus. publishers’ request has merit: doc- (holding that right acknowl provide uments themselves a more com- edged in Billings v. Atkinson was “the plete picture taxpayer of how money is type of information which the Legislature spent than the general categories do intended to exempt mandatory disclo produced totals by DPS. This fact was sure” provision under the PIA excepting Legislature, lost on the which catego- decision). by judicial matters confidential rized certain information in vouchers as (a squarely We held in Georgetown In re information. See Tex. Gov’t information) involving case agree And we with the “other law” just included not statutes and trial court that the public legitimate has a rules, “judicial but George decisions.” interest in how public money spent on town, 53 S.W.3d at 332. To reach that official state The dividing business. line holding, we relied on a United States Su between disclosure and restraint must be preme Court decision that concluded the determined proof. To the extent DPS law,” itself, phrase “all other show, “indicates can with detailed evidence or expert no limitation” any and did not allow testimony, dis revelation substantially positive tinction “between enactments and threatens harm —as it has with respect to common-law of liability.” rules guards number of & protecting gov- Norfolk Ry.W. Co. v. Am. Train Dispatchers ernor —then the information at issue Ass’n, 117, 128-29, 499 be withheld. A certain U.S. amount of defer- S.Ct. (1991), ence 113 L.Ed.2d 95 quoted George must be afforded DPS officers and town, other law experts enforcement 53 S.W.3d at 333. about the The concur probability harm, although position rence’s vague George asser- not unlike the dissent’s, tions of risk carry will not town day. position rejected But we then. the public’s right to “complete reject again informa- We today. Compare yield tion” must when disclosure of (suggesting that S.W.3d at 124 that “‘other substantially information would law’ statutory threaten must mean other law where 552.001(a). § 16. Tex. Gov’t Code if infor- is confidential certain infor Information has declared Legislature collected, assembled, or main- confidential”), mation is Georgetown, 53 with

mation J., entity (Abbott, governmental tained or for a dissenting) (sug at 339 detecting, purpose preventing, could for the only the gesting to, laws, an act of proce responding investigating that rules of so promulgate law”). activity criminal terrorism or related not be “other could dure

and: argues that be concurrence (1) staffing require- relates may not im itself the information cause emergency response ments of concerns, it cannot be plicate including a law enforce- provider, “expressly from disclosure protected agen- agency, fire-fighting ment law.” Tex. Gov’t under other confidential cy, emergency or an services But information does 552.022. Code agency; in a vacuum. When not exist (2) plan to a tactical of the relates bodily it a serious risk carries with provider; or harm, ignore those conse cannot we (3) compilation consists of a list or common deciding whether quences when numbers, telephone pager Dep’t U.S. protections apply. law Cf. cellular tele- cluding mobile and 164, 177, 112 Ray, 502 S.Ct. State v. U.S. numbers, provider. phone (1991) (considering 116 L.Ed.2d occur if in that would retaliatory action disclosed).17 Our common formation was 418.176 is DPS contends that section individuals protects making the vouchers confiden “other law” PIA,18 and, harm, with the consistent id. 552.101. and Hearst tial. See Cox to the disclosure protection extends not meet sec argue that the vouchers do substantially threat of information and, moreover, requirements tion 418.176’s harm. ens such failing to waived the issue DPS trial court and the court of raise it un- confidential III. Are the vouchers remanding Because we are for a appeals. der Government trial, argument may pursue new DPS 418.176? in the trial court in the first instance. Cf. (Tex. 232 S.W.3d Boyd, Kallam v. contends the documents Finally, DPS 2007) (deferring on issue until it Govern- decision exempt are from disclosure “ statute, fully litigated below ‘so that we That had been 418.176. ment Code section argu developed have the benefit of 2003,19 informa- will passed in makes certain opin sides and lower court response pro- ments on both relating emergency ” addressing question’ squarely in ions provides, viders The law confidential. Escondido, City 503 U.S. (quoting Yee pertinent part: 552.022(a). al., Privacy Hoefges 18. et 17. See also Michael Policy: Rights The Versus FOIA Disclosure in Access "Uses and Double Standard 2003, R.S., 2, 78th Effects" 19. See Act of June Personally-Identifiable in Gov- 4809, Information 3, 1312, § ch. 2003 Tex. Laws Records, J. 12 Wm. & Mary ernment Bill Rts (2003) (noting [Supreme] Court that "the secondary ef- derivative uses and considers on the side as fects of disclosure course”). matter of 112 S.Ct. 118 L.Ed.2d 153 disclosure though even there specific is no (1992))). ”); exception provided.... Id. at 692 J., (“It

(Reavley, dissenting) was not the IV. Conclusion intention of to turn over the administration of the Open Records appeals’ judg- We reverse the court of Act judiciary.”). to the con- Court ment and remand the case to the trial cludes that it is “not Legisla- bound court further proceedings consistent ture’s policy decisions” in deciding com- Tex.R.App. 60.2(d). with opinion. P. statute, law exceptions mon to the leaving apparent no boundaries on new common Justice WAINWRIGHT delivered a legislated disclosure concurring opinion, joined by Justice requirements in the PIA that courts JOHNSON. now create. 343 S.W.3d 112. Justice MEDINA and Justice case, Further complicating the the trial WILLETT did not in the participate court made an express finding “[p]ub- decision. lic disclosure of the information in the WAINWRIGHT, joined by Justice requested by vouchers repre- media [the JOHNSON, concurring Justice in the put any sentatives] would not person in an judgment. imminent physical danger threat of or cre- ate a substantial risk of serious bodily requested media vouchers that de- harm from reasonably perceived likely expenditure tail of public funds for the threat.” The Court acknowledges a lack governor’s security detail when he travels. expertise in such matters and credits it government Because concerns how the the law testimony enforcement that disclo- monies, spends taxpayer the information in sure of the vouchers would create a threat just “public vouchers is not information” injury. agree While I with the Court’s (PIA), Public Information Act safe, strong keep public desire to officials information, public greater is “core” with a in, Legislature weighed once the the ques- emphasis on than public keeping tion of public information from the information. See Gov’t people is not one for the courts. The Department The Texas judicially Court should not an ex- create Safety argues Public that the information ception to disclosure that contradicts the disclosed, should not though even it is Legislature’s expressed intent in the PIA. information, because of the risk join opinion, I cannot the Court’s but be- to the of elected officials. There is I argued, cause believe that DPS express exception no to disclosure for this trial accepted, court an not al- information. This tension re- lowed I would remand in the inter- sulted in this concluding that it justice ests for the trial court to consid- judge-made exceptions establish exceptions grounded er other in “other required PIA’s disclosure of information to law.” public, contradicting the unanimous de- precedent termination our Industrial Background I. Foundation South Texas Indus- trial Accident Board. See 540 S.W.2d The Public Information Act contains (‘We (plurality op.) comprehensive decline scheme arming adopt interpretation which statutory would with govern- mandates “collected, deny allow the court in its to discretion ment to disclose information as- sembled, public by information described gory maintained under a law or or (a) or in connection with business produce ordinance” Subsection or to not the cate- body, it is to by governmental a inspection or for or gory public information liberally grant requests construed to be duplication, category unless the of infor- information. expressly mation is made confidential un- Gov’t Code .002(a). 552.001(b), §§ All such informa- 552.022(b). § der other law.” Id. it is subject tion is to disclosure unless Reporters representing the Austin the definition of excepted either later from American-Statesman, San Antonio Ex- information” or it falls under an “public and the Houston press-News, Chronicle to See id. disclosure. requests to DPS officials. One re- sent .151; cf., e.g., §§ 552.101— Tex. Elec.Code porter requested “travel vouchers for Gov. 13.004(c) regis- § voter (defining certain Perry’s security trips Rick detail for all not information as confidential and tration during periods. out of state two time pur- information” for “constitut[ing] public January through time De- period first is PIA). “Public information” poses of the period time is cember 2001. second excepted from disclosure under may be January through June 2007.” Another re- C, may prohibited or be Subchapter quested copies “access to or travel if the information is deemed Perry’s security for Gov. Rick vouchers “confidential.” Gov’t acknowledge that parties detail.” The 552.007,.101, §§ .352. requests these include “information however, is, “pub- another level of There account, voucher, relating or contract lic Members of this Court information.” public receipt expenditure have, in Attorney General’s Office body.” funds See governmental other public” informa- past, “super called 552.022(a)(3). such, the informa- id. As tion; today public calls it “core requested public tion information. 112; In re information.” See 343 S.W.3d §Id. 552.022. Georgetown, 53 S.W.3d City of (Tex.2001) (Abbott, J., dissenting); Tex. II. Disclosure of Core Public Infor- type OR2004-7388. This is the “Expressly mation as Confiden- public govern- at the core of tial Under Other Law” functions, generally relating ment to laws Compared to the dozens of enacted, judiciary, actually decisions informa- “regular” public for disclosure of Legislature, gov- votes of the and how the tion, only there is one spends people’s money. ernment See PIA’s mandated disclosure of core 552.022, .0221, §§ .0225. “expressly information —if it is confidential such, As other law.” Id. The text of section subject the routine exclusions in Sub- 552.022’s narrow exclusion contains three C, chapter but be withheld from the facial the information must requirements: public only “expressly if the information is “confidential,” designation such that the confidential under law.” information is confidential must be “ex- important This rule was press,” and the source of the confidential enough Legislature specifically “other law.” This designation must be comply with Sec- commanded courts it. 552.022(b) requirement put place was mandates that court “[a] 25, 1999, May amendment. See Act of governmental this state not order R.S., 1319, 5,§ body or an officer for information to 76th ch. 1999 Tex. amendment, 4501. Prior to the public inspection any withhold cate- Gen. Laws

123 552.022 of the City Georgetown, section Government Code a case in which of Court examined merely recognized types of information whether rules in the Tex- as “public in section Rules of Civil Procedure enumerated 552.022were at- regarding torney-client privilege It recognized information.” that vouchers constituted “other law” section “if under 552.022. public (citing were information the information Id. City Georgetown, 53 In is not otherwise made confidential law.” S.W.3d at City Georgetown, the Court held language Id. But amendment added because our enacted clause, rules of court “have introductory requiring statutes,” the same and effect force and types public all of core information enu- the rules were derived from previously in section 552.022 infor- public merated are statutes, enacted such rules constitute “and excepted required mation “other law” under section 552.022. 53 under chapter they disclosure unless omitted). (quotation S.W.3d at 332 expressly are confidential today City Georgetown, misreads law.” Id.1 This 1999 amendment was asserting that it serves as the basis as a “true providing heralded success” in creating exceptions common law to ... “citizen full and complete information PIA. The Court cites no other au- Texas official regarding repre- acts those who thority holding. for this government.” sent them the affairs of Duncan, Rick No L. More Secrets: How provisions Other in the PIA also indicate Legislative Changes Recent Allow the Will judicial decisions should not be “other Information, Public Greater Access to purpose law” for the of the section. See — J. Tex. Admin. L. Kimbrell, -, Molinet v. Tex. Tech. S.W.3d (2000). give We should effect to all the 2011 WL 182230 (noting statute, in a changes words and to the we examine the “entire glean act” to legislative (citations Indep. words of acts. See meaning of a statute’s text Life Work, omitted)). Am. Ins. 77 quotations Co. In section (1934). PIA, S.W.2d As discussed Legislature excepted from below, not, opinion the Court’s as it information does that is “considered “confidential,” ignores “express,” to be confidential either constitu- requirements tional, statutory, “other law” statute. by judicial decision.” § 552.101. provision This Tex. Gov’t Code

A. Other Law applies to “public information” defined and 552.021, “Other law” means law other than the pursuant disclosable section George- Public Information Act. City public and not to core town, 53 S.W.3d at disagree 332-33. I delineated in section 552.022. If we were with the Court’s interpret assertion that “other law” “other law” section 552.022 exceptions to disclosure of pursuant judicial to include law made to a decision, can “judicial formation mean decisions.” would effectively apply we section 112. The as au- “judicial Court cites 552.101’s decision” its thority holding of In re case disclosure to core information. This Recently, date, 1. Texas amended tive be "expressly 552.022's confidential un- withheld if from disclosure it is "made confi- provision, spe- der other law” chapter and also added dential under this or other Id. law.” (to § cific in the PIA for certain confi- codified at Code Gov’t 552.022). generally May dential apply information. See Act This amendment does not 20, 2011, (to bar, 82nd R.S. be codified to the case at because the effec- statute's 51, 552). September chs. the effec- After tive date is 41. Tex. Gov’t to Government Code section Legislature’s explicit decessor to the contrary

is information is at 683. This is not public 552.101. 540 S.W.2d that statement un- required disclosure of “other law” under sec- excepted interpretation “not section including above, chapter,” 552.022, and, der the as discussed added). (emphasis § 552.022 552.101. coterminous. provisions two are not then, reading, is that logical The most Foundation, In all members Industrial statutory law must mean other law” “other scope that the of the agreed of the Court has declared certain Legislature where the exception give did not “judicial decision” confidential,2 or rules of court information check to create common the Court blank are commensu- by this Court drafted exceptions to the PIA. Id. at 681-82 City George- See statutes. rate with “It was not the intention of (plurality op.). town, at 333. 53 S.W.3d Legislature to turn over the adminis the “other law” in argues that The Court Open Records Act to the tration of to be right “individual[’s] is the this case J., (Reavley, Id. at dissent judiciary.” harm,” as manifested free from Denton, ing, joined by Steakley, Pope, and battery. 343 S.W.3d 112. the tort of JJ.); Comptroller see also Tex. Pub. physical safety is that because posits —Tex., v. S.W.3d Accounts Gen. of every govern “the concern primary (Tex.2010) (Wain -, 2010 WL 4910163 ment,” protects private PIA infor (“[Cjourts J., do not wright, dissenting) mation, surely physi protect it must then classify the discretion to information have (quoting as well. Id. at 115 cal basis; hoc confi as confidential on an ad Salerno, 481 U.S. States v. United dentiality public information is to be (1987)). 755, 107 95 L.Ed.2d 697 S.Ct. Act.”). by the terms of the As determined policy argument reasoning sound Comptroller, Leg I discussed Texas legislation. Elected officials drafting ability judi create islature limited our to by harm subjected to dan should not be to the PIA. Id. at -. exceptions be made cial whose task gerous persons Thus, requests. Legislature’s definition of through public easier satisfy only pri of how to policy “judicial exception” But the decision includes not ours. The objective time of vacy recognized torts Indus public has made nondisclosure at 678- trial Foundation. See being dependent at issue on it that time- 81. There was one such tort at confidential designated specifically facts. I would public private disclosure of the PIA. outside of rules or statutes scope “judicial limit the of the deci thus My sion” to that tort. funda Further, this Court has never held willingness is the mental concern Court’s protect the disclosure other torts to the common law create information under core- comprehensive disclosure scheme 552.022. In Industrial Foundation of PIA, Board, the PIA in three consecu weakening Industrial Accident South v. Texas interpreting City opinions tive scope pro- of information we decided Act — (Tex. Abbott, 304 S.W.3d pre- decision” under the Dallas by “judicial tected manner essentially withheld from the in such a the limited un- 2. This is issue; (ii) leave no discretion on the Freedom of Information Act. der the federal 552(b)(3) withholding particular (excluding establishes criteria for See 5 U.S.C. specifically particular types of matters to be that are or refers to withheld; FOIA’s reach "matters specifically references ... if exempted from disclosure statute 2009”). 552(b), (i) passed if after requires ... that the matters be statute 2010) if, gov response periods by tion 552.021 under the (extending specific circum- requests pertaining employee ernmental entities stances officer, un request the was information when disclosure of the information — clear), Comptroller, subject the employee Texas or officer to dates of birth “confidential” -(holding substantial threat of harm. excepting “judicial under decision” and (to § be recodified PIA), and them from disclosure under the 552.152). § at Tex. Gov’t The Code case, this DPS v. Cox. applies only amendment to information to dispute the the Immediately after over 552.021, pursuant be disclosed to section arose, disclosure of travel vouchers the i.e., regular “public information.” It is an Legislature making such considered C, in Subchapter specifi which voucher confidential.3 But it cally apply not to does informa security de- did not declare vouchers tion, like information in the vouchers at “confidential,” nor except tails did it these in this case. argues issue The Court “public vouchers from the definition of the Legislature’s passage” “swift of section Instead, the formation” under the 552.151 of Government Code “confirms Legislature what is codi- passed currently primacy” government’s the of the interest of the fied as section 552.151 Government protection against in physical harm. 343 provides: Code.4 That section But Legislature’s S.W.3d 112. the intent in custody govern- actually Information in the of a is best manifested what be — Molinet, body employee mental that relates to an comes law. S.W.3d at -(“The governmental body meaning or plain officer of the of the text is the best excepted requirements expression legislative from the of Sec- intent unless a personal safety exception. During 3. Parallel bills in the Texas House and Senate the during legislative attempt- agencies eighteen-month period, the current session the are re- specifically ed "a to make voucher submitted quired expense provid- submit summaries [Chapter or to be under of the submitted ing specified, detailed information. Id. The Government confidential and Code] provided has that this will be disclosed under the PIA” if the voucher "original juris- have and exclusive mandamus expenses protecting an was for incurred in construction, applicability, over the diction” family. elected official or the official's 3131, H.B. amendment, constitutionality or R.S., (introduced Leg. § 82nd March applies only to vouchers cre- amendment S.B.1923, R.S., 10, 2011); § Leg., 82nd Id.; 1, September ated on after 2011. see (introduced 29, 2011). April Neither bill yet § 80. The has not taken also id. Governor respective came each vote before bill’s the bill. action on during regular During chamber session. Because vouchers at issue this case 2011, special in June Bill 1 session Senate section, are inter- not covered new its was amended to make vouchers or re- other pretation is not before this Court. period imbursement forms confidential for a eighteen following trav- months date of original enacting legislation added the The expense el "if the reimbursement or travel May exception as section 552.151. See Act of by peace assigned incurred officer while 283, 4, 31, 2009, R.S., Leg., § 81st ch. provide protection for an elected official (codified Gen. Laws at this state or a member of the elected official’s session, 552.151). C.S., Leg- This family.” Leg., S.B. 82nd 1st Gov’t redesignated (introduced as islature the section May § 79A.01 Follow- 552.152, September effective 2011. See eighteen-month period, the vouchers 5, 2011, R.S., May S.B. subject Chapter Act of 82nd under "become to disclosure 27.001(20). excepted clarity, sake of 552 and For the are not disclo- opinion provision chapter sure will refer to the or confidential force, law,” exceptions, including presently in with section 552.151. seven made confidential” in the apparent....”). “expressly meaning is different Code, Code, and Transportation of section 552.151 demon Education promulgation Code). Likewise, Section 552.151 is there are a num- opposite. Family strates actions, statutory to the mandated disclo not an ber of tort both information. recognize sure of that certain common opinion grafts Legislature’s private Court’s are or confi- types instance, onto situa test found section 552.151 every dential.5 But infor- Legislature unambigu statute, in which the issue, tions mation is the itself not intend. The Court would ously did decision, rule, protect or crime exists to to hold that such rewrite section 552.151 person the information itself or a who will “excepted require from the information is by the information’s directly harmed ” of sections 552.021 or 552.022 and ments release. out of the PIA such that moves the section again, judicial the creates a Once Court considered “other law.” 343 it can be of information in exception to disclosure added). The (emphasis 112 Court S.W.3d possible a use of the the PIA based on spe law override a should not common rather than the nature the information statutory cific mandate. Comptroller, In information itself. Texas B. Confidential Court, time, considered for the first the release of arising harm derivative judicial include Even if “other law” birth disclosure of information —whether the common decisions and along with other public employees, dates of requires that the “other law” de- 552.022 information, identity could be used clare information “confidential.” such potential held that theft. meaning, have a fluid “Confidential” con- use of the tortious “secured,” “protected,” or “safe- such as to withhold the informa- grounds stituted City Georgetown, 53 guarded.” Cf. “clearly tion because it would constitute (“A law does not have to use S.W.3d at 334 personal privacy.” unwarranted invasion of expressly impose the word ‘confidential’ to — S.W.3d at -. Comptroller, confidentiality.”). Legislature has en- are not “free to balance But the courts certain plethora acted a of laws that deem against interest in disclosure public’s myriad pur- “confidential” for — by reason resulting harm to an individual Comptroller, poses. See Tex. S.W.3d - Found., Indus. 540 of such disclosure.” J., dissenting) (noting (Wainwright, op.). “This (plurality at 681-82 S.W.2d “no fewer 100 Texas statutes than by the determination was made policy classify pur- information as confidential for PIA”); when it enacted the statute.” Georgetown, 53 poses City J., Legislature granted the (Abbott, Id. at 682. The dissenting) S.W.3d at 339-40 after con- right to the information (providing examples people’s four of information curiam) secrets, (per privilege, 222-23 Examples include trade S.W.3d facts, gag private disclosure of relief for erroneous (providing for mandamus Bass, during In 113 documents); orders trial. See re rulings privileged Indus. on (Tex.2003) (defining S.W.3d 739 trade Bd., v. Tex.Ind. Accident Found. the S. secrets); Compe (Third) of Unfair 1976) Restatement (Tex. op.) (plurality 682-83 S.W.2d 39, 40, (similarly defining §§ trade tition (discussing the tort of disclosure of protection remedies available for secrets and Garcia, facts); Davenport v. private secrets); (setting of trade Tex.R. Civ. P. (Tex.1992) (discussing a court’s asserting privileges standards for in discov orders). gag authority to issue Co., ery); re E.I. DuPont de Nemours & In sideling potential battery its uses and harms. The tort of some un- declares Court, “confidential,” Legisla- apparently believing known information the fi- task, sufficiently its ture did not execute requirement nal of section 552.022 is that to dis- finds new common “other “expressly” law” must make closure on its own harm in based views the information “confidential.” The Court of, occasion, potential on this use does not address how it believes public information. information at issue “expressly” here is confidential. Merriam-Webster’s dictio- here, Comptroller,

In Texas as nary “express” “directly, defines firm- considering Court did not restrict itself to ly, and explicitly stated.” Merriam-Web- whether the actual release of informa- Dictionary, http://www. available at (state dates) employees’ birth was ster merriam-webster.com/dictionary/express harmful, whether, wrong but rather in the (last visited June hands other infor- The tort of combination with mation, numbers, “(a) Security battery Social ... person such as when acts higher state employees might be at risk intending to cause a harmful or offensive — identity theft. Tex. Comptroller, person contact with the of the other or a derivative, S.W.3d -. The harm was an person, apprehen- third or imminent analysis post-hoc, judi- and the allowed for contact, (b) sion such a and a harmful cially created to disclosure. person contact with the the di- For reasons in Comp- the same Texas rectly indirectly .or results.” Restate- troller, analysis I believe the Court’s and (1965); see (Second) ment of Torts application of harm to create an derivative C.S., Bailey also exception inappropriate, to disclosure is (“A (Tex.App.-Dallas per- no pet.) particularly because of so if battery intentionally son commits a he issue, nature of the information at and knowingly or causes contact with permit because the rule could un- Court’s another when he knows or should reason- judicial declaring any fettered discretion in ably person regard believe the other will subject information to Its not disclosure. the contact provocative.”). as offensive or discovery right may of this common law elements, Nowhere in tort’s or in any inadvertently even have the effect of creat- cases, “directly, firmly, our and ing some common law cause action for explicitly battery protects stated” information,” “wrongful disclosure and formation from disclosure. The tort con- potential randomly have to cerns harmful offensive intentional unnecessarily subject government various ignores contact. The this critical Court agencies liability and officers to criminal requirement limiting statute for simply disclosing what the information ability protect court’s to determined, admits, Court is core disclosure. See information. Gov’t Code Tex. (defining the misdemeanor battery Simply put, common law is not crime of “con- distribution information “other law” which the under information sidered confidential under the terms of “expressly issue here is confidential.” The chapter”). this legislated recog- limits oversteps Court nized in to inter- Industrial Foundation Expressly

C. exceptions to under the pret disclosure reason, join For I in Even if our common law torts are “oth- PIA. this do not law,” somehow, if, er opinion. even threat Court’s attorney initially gener- articulated Appropriate Is Remand

III. al, to actually required more information join opin- the Court’s cannot Although I disclosed, only “special if the because that remand ion, judgment its join I employ- circumstances” existed could the trial DPS’s and I believe appropriate. (including his personnel ee’s “special on the reliance improper court’s number, address, phone and oth- her home exception, possibil- circumstances” information) be withheld. Tex. personal er officials, warrants a ity of harm (1974); Att’y Gen. Att’y Gen. ORD-54 I justice. also in the interests remand (1977). ORD-169 opportu- have the DPS should believe that attorney general opinions, In later specific nity argue test though, “special circumstances” Security by the Homeland made conjunction in with sec- was not discussed apply. Act should “clearly unwarranted inva- tion 552.102’s upon the on and builds relies in personal privacy” employees’ sion of circumstances” “special Attorney General’s files, but rather as personnel test, Attorney ap- General has which judicial or “other decision” letter rul- times various numerous plied See, e.g., section 552.101. holding today. How- of its ings, support party extensively No dis- OR2004-10845. test, apply ever, rulings, and its do in the the evolution of this test cussed at issue here nor to attorney general’s office from 1977 until which the Court theory upon legal relies However, that the attor- today. appears withholding the information. “spe- ney general’s applying basis for one-page is a of the test genesis to information not cial circumstances” test 1974, that was later ruling from letter subject was based on the to disclosure It was not a freestand- in 1977. expanded public of the tort of disclosure application information, rather but ing test to withhold (discussed in Industrial private facts informa- determining in whether was used analyzed under the em- Foundation “clearly unwar- as a tion could be withheld exception, predecessor file to ployment privacy,” sep- 552.102) a personal invasion of “judicial ranted deci- section as another arate, statutory exception to disclosure to excluding pursuant sion” in the Act. public non-core section 552.101. (1974); Att’y ORD-54 Attorney It that the Gener- appears also (1977); see also Gen. ORD-169 Tex. Gov’t that section 5 52. 101 is al has determined (providing deciding purpose “other law” for the information for informa- regular “public” public whether core information can be file, “the disclosure of personnel tion in a public I that the tort of agree withheld. clearly a unwar-

which would constitute “judi- private may disclosure of facts be privacy”). In personal ranted invasion decision,” at time cial as it was extant words, attorney general exam- promulgated, the PIA was could circumstances,” such as an “special ined an exclusion from disclosure the basis of threat- history being employee’s specific 552.101 and also be under section stalked, ened, harassed, to if infor- see public which core informa- “other law” file employee’s personnel in a mation state confidential” under sec- “expressly tion is However, 552.101, what is now in should not be disclosed 552.022. tion itself, PIA. Rather than “other law” to section 552.102 of the and of cannot be To en- public from disclo- withhold core information. protecting more information test, Legisla- would thwart the sure, act such rule “special circumstances” expressed public ture’s intent that core departed arrived and from the foreign subject Subchap- information is not country. Other information in the vouch- exceptions, ers, ter including C section 552.101. such as total spent amounts for lodg- This is further evidenced the fact that meals, costs of present Legislature’s new “special circum- security same concerns. The trial court exception, stances” which appears to be should carefully consider the varying levels Attorney similar to the General’s so-called of concern for the different types of infor- common law “special circum- mation in the vouchers. C, exception, Subchapter

stances” is in IV. Conclusion currently applying “public thus informa- tion” but public not core information that There legitimate concern about fash- must be pursuant disclosed to section ioning a rule that could those who allow Therefore, 552.022. Attorney Gener- want to government do harm to officials to “special al’s circumstances” gain information to help them do so apply should not to the information here. through government’s own records. The rule the today Court announces Attorney “special General’s circum- —that it can fashion common law exceptions to apply stances” test cannot in this situation. of core However, information —is because the use of the test as an genuine based on a concern protect our independent withholding basis for informa- officials from harm reasonably was well established terrorism, acts of but it thwarts the Legis- attorney number of general rulings letter it, lature’s clear statement not the for a years, number of because DPS and courts, grants exceptions to the public’s erroneously the trial court upon relied access to test, information. There are and because of the personal serious many statutes and rules that make infor- case, concerns issue I confidential,” mation “expressly but justice remand the interest of judge-made one, battery tort of is not argue any allow DPS to and all we should law,” guard against any that are court creat- based on “other such as one keep government reasons to informa- based on Government Code 418.176, tion from its citizens. That policy-laden from the Homeland Tex.R.App. task, Security 60.3; emphasized in Act. See P. Industrial Founda- Low tion, Henry, belongs Legislature. Because (remanding opens “to allow the Court’s rule parties present the door to new responsive judicially evidence new created to disclosure [the Court’s] guidelines”). of core information and weakens what was one of the strongest, most robust remand, On the trial court should con- freedom of information statutes the na- sider whether specific information in the tion,6 respectfully I join cannot the Court’s vouchers raises serious security concerns opinion. But because I believe remand and should be redacted. example, For justice interest of I appropriate, join the sample submitted in camera to the judgment. the Court’s Court, only one cannot identify at which specific security hotels Governor’s de- and, stayed

tail inferentially, they whether

stayed Governor, in the same hotel as the

but also when the members of the detail Dallas, (Feb. 16, 2005) City (statement

6. See 304 S.W.3d at 395 n. 5 Rec. S1525-26 J., (Wainwright, dissenting) (citing Cong. Cornyn)). Senator John

Case Details

Case Name: Texas Department of Public Safety v. Cox Texas Newspapers, L.P.

Court Name: Texas Supreme Court

Date Published: Jul 1, 2011

Citation: 343 S.W.3d 112

Docket Number: 09-0530

Court Abbreviation: Tex.