Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/28/2015 1:25:02 PM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 8/28/2015 1:25:02 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00093-CV *1 ACCEPTED ^[6701214] CLERK

No. 03-15-00093-CV _______________________________________________ In the Court of Appeals for the Third District of Texas at Austin _______________________________________________ C ITY OF H OUSTON ,

Appellant V .

K EN P AXTON , A TTORNEY G ENERAL OF T EXAS , Appellee _______________________________________________ On Appeal from the 250th Judicial District Court Travis County, Texas

Trial Court Case No. D-1-GV-14-000227 ______________________________________________________________ Appellant’s Reply Brief

______________________________________________________________ Donna L. Edmundson Mary E. (“Mary Beth”) Stevenson

City Attorney Assistant City Attorney

SBN: 24072366 Judith L. Ramsey C ITY OF H OUSTON L EGAL

Chief, General Litigation Section D EPARTMENT

900 Bagby, Fourth Floor Houston, Texas 77002 832.393.6491 (Telephone) 832.393.6259 (Facsimile) marybeth.stevenson@houstontx.gov Attorneys for Appellant

Oral Argument Requested *2 Table of Contents

Page Index of Authorities .................................................................................... iii

Summary of Argument in Reply ................................................................... 1

Argument and Authorities ............................................................................ 2

I. The client is the City, and the City may assert the attorney-client

privilege for statements made by its employees to City lawyers taken in the course of an internal investigation and made part of its investigative report. ............................................................................. 2 II. The Attorney General concedes that the entire investigative report

is excepted from disclosure, and nonetheless still demands that exact copies of a portion of that report be disclosed. ............................. 3 III. There is no merit to the Attorney General’s contention that

applying to the witness statements in this case would enable a governmental body to circumvent the PIA. ............................. 5 Conclusion and Prayer ................................................................................. 6

Certificate of Compliance ............................................................................. 7

Certificate of Service .................................................................................... 8

Index of Authorities

Page(s) Cases

Harlandale Indep. Sch. Dist. v. Cornyn ,

25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied) ...................... passim In re USA Waste Mgmt. Res., L.L.C. ,

387 S.W.3d 92 (Tex App.—Houston [14th Dist.] 2012, orig.

proceeding) .......................................................................................... 2-3 Upjohn Co. v. United States ,

449 U.S. 383, 101 S. Ct. 677 (1981) ............................................... 2, 4, 5, 6 Other Authorities

Texas Disciplinary Rule of Professional Conduct 1.12 ................................... 4

iii *4

Summary of Argument in Reply The City does not ask this Court to construe the attorney client privilege expansively but instead to apply it consistently with its own precedent. While

the Attorney General acknowledges that the witness statements were part of

the City’s investigative report, and that, as attached to the report, those

statements are protected from disclosure under Harlandale Independent School

District v. Cornyn , 25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied), the

Attorney General then argues that any other copies of those statements must

be disclosed. This makes no sense. If the investigative report is privileged, so

are its component parts, according to Harlandale .

Second, there is no merit to the Attorney General’s argument, contrary to this Court’s holding in , that a government body could circumvent

the PIA by merely attaching unrelated documents to an investigative report

and thereby shield those documents from disclosure. No party argues that

unrelated documents appended to an investigative report should be protected.

That argument loses force where, as here, the documents indisputably relate to

the City’s internal investigation. The Attorney General’s parade of horribles is

based on a straw man argument, not on the facts of this case.

The information at issue here—witness statements from interviews conducted in the course of the internal investigation to which the investigative

report directly pertains—were properly attached to and incorporated into the

investigative report compiled by City attorneys to render legal advice to the

City; those statements are therefore protected by the attorney-client privilege.

Argument and Authorities

I. The client is the City, and the City may assert the attorney-client

privilege for statements made by its employees to City lawyers taken in the course of an internal investigation and made part of its investigative report.

The client is the City, and the City’s attorneys in the OIG are lawyers for the City. CR.14-18, 19. The internal investigation in this case was conducted at

the behest of the City, and City policy dictates that City employees are

expected to cooperate with any OIG investigation. CR.16 (Section 5.7.3).

Like the attorney in , the City’s lawyers at OIG compiled a report after conducting interviews with several employees, and the

“Information at Issue” in this case was attached to and used in that report. 25

S.W.3d at 330; CR.22, IAI at AG Jenkins(Brooks)00008-14, 00024-28. Like

the in-house attorneys in Upjohn and Waste Management , the information

gleaned from the internal investigation here enabled OIG attorneys Sandra W.

Robinson and Inspector General Robin Curtis to render legal advice regarding

personnel issues and departmental guidance. CR.14-16, 19; see Upjohn Co. v.

United States , 449 U.S. 383, 394, 101 S. Ct. 677 (1981); In re USA Waste Mgmt.

*6 Res., L.L.C. , 387 S.W.3d 92, 97-98 (Tex App.—Houston [14th Dist.] 2012,

orig. proceeding).

II. The Attorney General concedes that the entire investigative report is

excepted from disclosure, and nonetheless still demands that exact copies of a portion of that report be disclosed.

In its Opinion Letter, the Attorney General agreed with the City concerning most of the information that the City sought to withhold. CR.27

(“[W]e find that you have established most of the submitted information is

protected by attorney-client privilege.” (citing Harlandale , 25 S.W.3d 328)).

Indeed, the Attorney General states on appeal that he “agrees the entirety of

the report would be excepted from disclosure if requested under the PIA, in

accordance with Harlandale .” Brief at 20. He then goes on to explain that,

because the Requestor sought the entire report and requested the statements of

witnesses, her request is different from the request in Harlandale . Brief at 20.

The Attorney General attempts to create a distinction where none exists.

If the entire report is not subject to disclosure, as the Attorney General

recognizes, then neither are copies of the report’s component parts. See , 25 S.W.3d at 335 (When an attorney conducts an investigation in

her capacity as an attorney for the purpose of providing legal services and

advice to a client, an attorney’s entire investigative report comes under the

attorney-client privilege); accord Upjohn , 449 U.S. at 395 (interviews and

questionnaires circulated by general counsel to employees were protected by

privilege). In Harlandale , this Court has already rejected the Attorney General’s

piecemeal approach to an investigative report. 25 S.W.3d at 335.

And, contrary to the Attorney General’s contentions, did not separately consider whether each and every exhibit was eligible for being

protected by the attorney-client privilege; the entire report, including its

component parts, were found to be protected from disclosure as privileged

because they were part of the investigative report. Id.

The report—with its component parts—was confidential attorney-client communication from City lawyers to the City. See, e.g. , Texas Disciplinary

Rule of Professional Conduct 1.12, cmt. 3 (providing that interviews between a

lawyer and an employee made in the course of an internal investigation are

confidential and may not be disclosed to other employees unless permitted by

the organization); IAI at AG Jenkins(Brooks)00008, 00024 (indicating the

confidential nature of the communication). There is no basis for the Attorney

General to find that copies of component parts of the report should be subject

to disclosure while also conceding that the entire investigative file is protected

from disclosure.

III. There is no merit to the Attorney General’s contention that applying

Harlandale to the witness statements in this case would enable a governmental body to circumvent the PIA.

The Attorney General raises the specter that a governmental body may circumvent the PIA by attaching any documents to an investigative report.

Brief at 23. Yet no one contends that the statements at issue were not an

integral part of, and directly related to, the internal investigation or that they

were improperly attached to the investigative report. The Attorney General’s

argument is based on speculation and not on the facts of this case.

Additionally, the Attorney General does not contest that the very information the Requestor seeks is available to the Requestor through doing

her own legal and investigative work by interviewing the witnesses herself. See , 25 S.W.3d at 335 (stating that “[i]n weighing these competing

concerns [between the PIA and attorney-client privilege], we need not

surrender the fundamental protections afforded by the privilege to uphold the

interests of the Act” and holding in favor of the privilege because requestor

could obtain information from the same sources) (emphasis added); accord

Upjohn , 449 U.S. at 396 (“considerations of convenience do not overcome the

policies served by the attorney-client privilege”). Indeed, Jenkins’ letter request

indicates that she was already aware of the identities of some, if not all, of the

witnesses who could supply her with the factual information about the alleged

wrongdoing in the affected City department. CR.12.

In sum, the interviewees whose statements are at issue gave those statements in cooperation with the OIG pursuant to City policy and at the

City’s behest. IAI at AG Jenkins(Brooks)00008-14, 00024-28; CR.14-16. The

information is confidential attorney-client information where, as here, it is

1) an integral part of an internal City investigation, 2) conducted by attorneys

on behalf of their client (here, the City), 3) for the express purpose of rendering

legal advice to the client based on the results of the investigation. This is core

attorney conduct and core communication for which a client rightly expects

confidentiality. See Harlandale , 25 S.W.3d at 334-35; Upjohn , 449 U.S. at 394.

Conclusion and Prayer

For the foregoing reasons, the City respectfully asks the Court to: 1) reverse the judgment of the trial court; 2) render judgment for the City that

the remaining “information at issue,” IAI at AG Jenkins(Brooks)00008-14,

00024-28, is protected from disclosure by the attorney-client privilege; 3) grant

the City its costs and expenses; and 4) grant the City any other relief to which

it is entitled.

Respectfully submitted, DONNA L. EDMUNDSON City Attorney

JUDITH L. RAMSEY Chief, General Litigation Section By: /s/ Mary Beth Stevenson Mary E. (Mary Beth) Stevenson Assistant City Attorney SBN: 24072366 C ITY OF H OUSTON L EGAL D EPARTMENT 900 Bagby, 4th Floor Houston, Texas 77002 832.393.6491 (Telephone) 832.393.6259 (Facsimile) marybeth.stevenson@houstontx.gov Attorneys for Appellant Certificate of Compliance

I certify that the foregoing was prepared in Microsoft Word 2010 Version 14.0 in Calisto MT 14 point font; the word-count function shows that,

excluding those sections exempted under TRAP 9.4(i)(1), the brief contains

1,294 words.

/s/ Mary Beth Stevenson Mary E. (Mary Beth) Stevenson *11 Certificate of Service

I hereby certify that on this 28th day of August, 2015, a true and correct copy of the foregoing has been served on counsel below via e-service.

Matthew R. Entsminger

Assistant Attorney General

Open Records Litigation

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

matthew.entsminger@texasattorneygeneral.gov

Attorney for Appellee

/ s / Mary Beth Stevenson Mary E. (“Mary Beth”) Stevenson