Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/24/2015 3:03:48 PM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 6/24/2015 3:03:48 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00093-CV *1 ACCEPTED [5808716] 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 ______________________________________________________________ Brief of Appellant
______________________________________________________________ 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
Identity of Parties and Counsel A complete list of the names and addresses of all parties to the trial court’s final judgment and to this appeal and their counsel is as follows:
Appellant: Counsel for Appellant:
The City of Houston Appellate Counsel:
Mary E. (Mary Beth) Stevenson Assistant City Attorney C ITY OF H OUSTON L EGAL D EPARTMENT 900 Bagby, 4th Floor
Houston, Texas 77002 marybeth.stevenson@houstontx.gov Trial Counsel:
David L. Red
Senior Assistant City Attorney C ITY OF H OUSTON L EGAL D EPARTMENT 900 Bagby, 4th Floor
Houston, Texas 77002 david.red@houstontx.gov Appellee: Counsel for Appellee:
Ken Paxton, Attorney Trial and Appellate Counsel:
General of Texas
Matthew R. Entsminger Assistant Attorney General Open Records Litigation P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 matthew.entsminger@texasattorneygeneral.gov ii
Table of Contents
Page Identity of Parties and Counsel ..................................................................... ii
Index of Authorities .................................................................................... vi
Statement of the Case .................................................................................. ix
Statement Regarding Oral Argument ............................................................ x
Issue Presented ............................................................................................ x
Statement of Facts ........................................................................................ 1
I. Mayor Parker promulgates Executive Order 1-39 Revised,
establishing the Office of Inspector General under the supervision of the City Attorney. ........................................................................... 1 II. City policy as set forth in Executive Order 1-39 Revised requires
all City employees to cooperate fully with any OIG investigation. ......... 2 III. A lawyer from the OIG conducts an internal investigation on
behalf of the City. ............................................................................... 2 IV. An attorney representing a Respondent employee who was
interviewed files a request pursuant to the Texas Public Information Act (“TPIA” or “Act”) for the OIG report and supporting evidence. ........................................................................... 3 Summary of the Argument ........................................................................... 5
Argument and Authorities ............................................................................ 6
I. Standard of review for cross-motions for summary judgment. ............... 6
II. Information protected by the attorney-client privilege is not subject
to disclosure under the TPIA. .............................................................. 7 A. The TPIA requires disclosure of public information unless an exception applies. .................................................................. 7 iii
B. Texas Rules of Evidence comprise “other law” that makes information “expressly confidential” and not subject to disclosure under the TPIA. ......................................................... 8 C. The attorney-client privilege. ...................................................... 9
III. The information at issue was part of an internal investigation
conducted at the behest of the City by City attorneys at OIG to provide legal advice to the City. ......................................................... 12 A. The Attorney General’s piecemeal approach to the investigative file is contrary to this Court’s precedent and other case law. ......................................................................... 13 B. The parties involved in each communication at issue are identified on the face of the documents in question as being an attorney for the City and a City employee. ........................... 18 C. Counsel for the City conducted the internal investigation in order to give advice to the City as the client. ............................. 18 D. The communication is and has remained confidential. .............. 19 E. The communication was made at the direction of the City and pursuant to the City’s policy of full employee cooperation with the OIG. ....................................................... 20 F. The factual information Jenkins seeks is available through other means. ............................................................................ 21 IV. The City did not waive its privilege with respect to the Information
at Issue. ............................................................................................ 23 A. The Attorney General has no evidence and there is no indication that the City disclosed the information at issue. ......... 23 B. Making the Brooks statement available to his attorney does not waive the privilege for the information at issue. ................... 24 Conclusion and Prayer ............................................................................... 26
Certificate of Compliance ........................................................................... 27
iv
Certificate of Service .................................................................................. 28
Appendix
A. Final Judgment (10/28/2014)
B. Tex. R. Evid. 503
C. Tex. Gov’t Code § 552.3221
D. Tex. Gov’t Code § 552.324
E. Tex. Gov’t Code § 552.108
v
Index of Authorities
Page(s) Cases
Abbott v. City of Dallas ,
453 S.W.3d 580 (Tex. App.—Austin 2014, pet. filed) ................................ 8 Alpert v. Riley ,
267 F.R.D. 202 (S.D. Tex. 2010) ............................................................ 14 Barnes v. Whittington ,
751 S.W.2d 493 (Tex. 1988) (orig. proceeding) ....................................... 23 Coastal Liquids Transp., L.P. v. Harris Cnty. Appraisal Dist. ,
46 S.W.3d 880 (Tex. 2001) .................................................................... 6-7 Comm’rs Court of Titus Cnty. v. Agan ,
940 S.W.2d 77 (Tex. 1997) ....................................................................... 6 Dunn v. State Farm Fire & Cas. Co. ,
927 F.2d 869 (5th Cir. 1991) .................................................................. 22 Ferguson v. Bldg. Materials Corp. of Am. ,
295 S.W.3d 642 (Tex. 2009) ..................................................................... 6 FM Props. Operating Co. v. City of Austin ,
22 S.W.3d 868 (Tex. 2000) ....................................................................... 6 Harlandale Indep. Sch. Dist. v. Cornyn ,
25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied) ...................... passim Huie v. DeShazo ,
922 S.W.2d 920 (Tex. 1996) ..................................................................... 9 In re Carbo Ceramics Inc .,
81 S.W.3d 369 (Tex. App.—Houston [14th Dist.] 2002, orig.
proceeding) ........................................................................................... 24 In re City of Georgetown ,
53 S.W.3d 328 (Tex. 2001) ....................................................................... 8 vi
In re E.I. DuPont de Nemours and Co .,
136 S.W.3d 218 (Tex. 2004) ........................................................ 10, 11, 14 In re USA Waste Mgmt. Res., L.L.C. ,
387 S.W.3d 92 (Tex App.—Houston [14th Dist.] 2012, orig.
proceeding) ........................................................................... 16, 17, 18, 19 In re Valero Energy Corp .,
973 S.W.2d 453 (Tex. App.—Houston [14th Dist.] 1998, no pet.) ......... 9, 17 Jones v. Strauss ,
745 S.W.2d 898 (Tex. 1988) ..................................................................... 6 Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding ,
289 S.W.3d 844 (Tex. 2009) ..................................................................... 7 Marathon Oil Co . v. Moye ,
893 S.W.2d 585 (Tex. App.—Dallas 1994, orig. proceeding) .......... 9, 23, 24 Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc. ,
323 S.W.3d 151 (Tex. 2010) ..................................................................... 7 Nat’l Tank Co. v. Brotherton ,
851 S.W.2d 193 (Tex. 1993) ................................................................... 11 Nat’l Union Fire Ins. Co. v. Hoffman ,
746 S.W.2d 305 (Tex. App.—Dallas 1988, orig. proceeding) ................... 25 Nixon v. Mr. Prop. Mgt. Co. ,
690 S.W.2d 546 (Tex. 1985) ..................................................................... 7 Upjohn Co. v. United States ,
449 U.S. 383, 101 S. Ct. 677 (1981) .................................................. passim West v. Solito ,
563 S.W.2d 240 (Tex. 1978) ................................................................... 23 Statutes
Tex. Gov’t Code §§ 552.001 et seq . ................................................................ 4
Tex. Gov’t Code § 552.001 ........................................................................... 7
vii
Tex. Gov’t Code § 552.022 ........................................................................... 8
Tex. Gov’t Code § 552.108 ......................................................................... 23
Tex. Gov’t Code § 552.301 ......................................................................... 23
Tex. Gov't Code § 552.3221........................................................................ 23
Other Authorities
Tex. Att’y Gen. Op. No. OR2014-02684,
2014 WL 1254396 (Feb. 12, 2014) .......................................................... 11 Tex. R. Civ. P. 166a ..................................................................................... 7
Tex. R. Evid. 503 .............................................................................. 9, 10, 11
Texas Disciplinary Rule of Professional Conduct 1.12 ................................. 25
viii
Statement of the Case
Nature of the Case: This is a suit brought by a governmental
body pursuant to Texas Government Code section 552.324 seeking to withhold information from a requestor as privileged under Texas Rules of Evidence 503. CR_3-5.
Course of Proceedings: The City timely requested an Attorney
General decision letter pursuant to Texas Government Code section 552.301 regarding a portion of the requested documents. CR_8-11. The Attorney General held that most of the information was protected by attorney- client privilege, but other information was not protected by that privilege and must be disclosed. CR_27. The City brought suit against the Attorney General seeking to withhold the information that the Attorney General held was not privileged. CR_3-5.
Disposition: On cross motions for summary
judgment, the trial court held that the information at issue was subject to disclosure because the attorney-client privilege did not apply to that information. CR_109.
Trial Court: Hon. Stephen Yelenosky
250th Judicial District Court Travis County, Texas ix
Statement Regarding Oral Argument The City of Houston respectfully requests oral argument.
Issue Presented
Issue 1 The trial court erred when it denied the City’s motion for summary judgment and granted the Attorney General’s motion for summary judgment because the City established that the communications at issue are protected by the attorney-client privilege as a matter of law and there is no evidence that the City waived its privilege with respect to the information at issue.
x
Statement of Facts
I. Mayor Parker promulgates Executive Order 1-39 Revised, establishing
the Office of Inspector General under the supervision of the City Attorney.
On March 1, 2011, Mayor Parker approved Executive Order 1-39 Revised, which established the Office of Inspector General (OIG) as a division
of the Office of the City Attorney and under the City Attorney’s supervision.
CR_14-18 ( see section 2.1). Ms. Robin Curtis, who is a board certified Labor
and Employment Law attorney, was appointed and currently serves as the
City’s Inspector General (IG). CR_19. Ms. Sandra W. Robinson is also an
attorney working in the OIG in the City’s Legal Department. CR_19.
The Executive Order establishing the OIG specifically provides that the OIG has the responsibility to “[s]upply information, which information may
be protected from public disclosure as provided by law, to … Directors of City
Departments to facilitate investigations of allegations of employee misconduct
and any associated disciplinary actions or enforcement of civil or criminal
laws.” CR_14-15 (Section 5.1.3). Additionally, the OIG “may consult with the
City Controller regarding allegations of employee misconduct that may expose
the City to significant financial loss.” CR_15 (Section 5.3). The Inspector
General “shall supervise the OIG in its investigation of fraud, corruption,
waste, mismanagement, conflicts of interest, ethics violations, discrimination
and violations of state or federal law, the City Charter, City Ordinances, City
Council Code of Conduct, Executive Orders, Administrative Procedures, or
Mayor’s Policies.” CR_15 (Section 5.2).
II. City policy as set forth in Executive Order 1-39 Revised requires all
City employees to cooperate fully with any OIG investigation. The OIG City policy expressly states that “[a]ll City employees and appointed officials shall cooperate fully with any investigation conducted by
the OIG and must provide truthful information, written statements,
documents, and related materials upon OIG’s request.” CR_16 (Section 5.7.3).
Further, the policy provides that “[a]ny City employees or appointed official
who fails to fully cooperate with any OIG investigation violates this Executive
Order and, accordingly, commits misconduct.” CR_16 (Section 5.7.4).
III. A lawyer from the OIG conducts an internal investigation on behalf
of the City.
In early 2013, an attorney for the City working in the Office of the Inspector General in the City’s Legal Department conducted an internal
investigation into alleged wrongdoing of City employees pursuant to Office of
Inspector General’s Complaint #111-100288-001(HCCSC). See CR_19 (listing
City Legal Department personnel); (Information at Issue (IAI) at AG
Jenkins(Brooks)00008, 00024 (naming the City lawyer in the OIG who
conducted the interviews); CR_12-13. That attorney interviewed City
employees in order to ascertain whether the allegations of wrongdoing had any
factual basis on which OIG gave legal advice about possible courses of action
to the City. See, e.g ., IAI at AG Jenkins(Brooks)00008-14, 00024-28; see also
CR_12-13 (referring to Mr. Brooks’s pre-termination hearing). Each
interviewee initialed the preamble statement, which, among other things:
explained they were furnishing the statement voluntarily and not as a
condition of employment with the City; stressed the confidential nature of the
document and that it not be disclosed, except to that interviewee’s individual
attorney; and instructed each interviewee to provide complete information to
the OIG attorney investigator. See IAI at AG Jenkins(Brooks)00008, 00024.
IV. An attorney representing a Respondent employee who was
interviewed files a request pursuant to the Texas Public Information Act (“TPIA” or “Act”) for the OIG report and supporting evidence. On October 29, 2013, the City received a TPIA request from Ms. Stacey M. Jenkins, counsel for Mr. Willie Brooks, for records related its investigation
of certain City of Houston employees, including Mr. Brooks, as a result of
OIG Complaint #111-100288-001(HCCSC). CR_12-13. The City made
available certain information to Ms. Jenkins and timely requested an Attorney
General opinion on the remainder on November 12, 2013. CR_21-24. The
City asserted in its letter that the information at issue was not subject to
disclosure pursuant to section 552.108 of the TPIA [1] and to the attorney-client
communication privilege found in Texas Rule of Evidence 503. CR_21-24.
On February 14, 2014, the City received Open Records Letter Ruling OR2014-02684 from the Attorney General. CR_25-29. 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 Indep.
Sch. Dist. v. Cornyn , 25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied)).
The Attorney General opined that certain other information was not privileged
and therefore subject to disclosure. CR_27. Of that information, the only
“information at issue” remaining on appeal are two statements from
Respondent employees who were interviewed by a lawyer in the OIG as part
of the investigation into possible employee wrongdoing in a City program. See
IAI at AG Jenkins(Brooks)00008-14 and AG Jenkins(Brooks)00024-28 (a
portion of the “Information at Issue” submitted to the Court for in camera
review). [2]
[1] Tex. Gov’t Code §§ 552.001 et seq .
*15 On February 24, 2014, as required by the statute to appeal, the City sued the Attorney General pursuant to section 552.324 of the TPIA challenging the
finding in Open Records Letter Ruling OR2014-02684 that a few of the
documents gathered in the City’s internal investigation were subject to
disclosure. CR_3-5. On cross motions for summary judgment, the trial court
granted the Attorney General’s motion, denied the City’s motion, and entered
judgment that the “information at issue” is subject to disclosure. CR_109.
The City now appeals.
Summary of the Argument The information at issue in this case—two Respondent interviewee statements by City employees taken in the course of an internal investigation
by the OIG in the City Attorney’s office—is not subject to disclosure because it
is protected by attorney-client privilege under Texas Rule of Evidence 503. The
OIG conducted the investigation at the behest of its client, the City, and the
information at issue is part of the OIG’s investigative report. City employees
who gave confidential statements to the City’s attorney in the OIG were acting
according to City policy of cooperating with OIG investigations. This
cooperation furthered the City’s purposes of obtaining legal advice about what
legal courses of action to take regarding the allegations of wrongdoing in one
of its departments that affected a City program.
There is no evidence that the City waived its privilege in this case with respect to the information at issue and no evidence that any other exception to
the privilege applies. The privilege belongs to the City, and the City has
maintained the confidentiality of the information at issue in this case.
Accordingly, the Court should reverse the trial court’s judgment and render
judgment for the City that the remaining “information at issue” is protected by
attorney-client privilege and is not subject to disclosure.
Argument and Authorities
I. Standard of review for cross-motions for summary judgment.
Courts review a trial court’s decision to grant summary judgment de novo. Ferguson v. Bldg. Materials Corp. of Am. , 295 S.W.3d 642, 644 (Tex. 2009).
When both parties move for summary judgment and the trial court grants one
motion and denies the other, courts review both sides’ summary judgment
evidence and determine all questions presented. FM Props. Operating Co. v. City
of Austin , 22 S.W.3d 868, 872 (Tex. 2000) (citing Comm’rs Court of Titus Cnty. v.
Agan , 940 S.W.2d 77, 81 (Tex. 1997); Jones v. Strauss , 745 S.W.2d 898, 900
(Tex. 1988)). When reviewing cross-motions for summary judgment, courts
consider both motions and render the judgment that the trial court should have
rendered. Coastal Liquids Transp., L.P. v. Harris Cnty. Appraisal Dist. , 46 S.W.3d
*17 880, 884 (Tex. 2001); see also Mid-Continent Cas. Co. v. Global Enercom Mgmt.,
Inc. , 323 S.W.3d 151, 153-54 (Tex. 2010).
To succeed on a motion for summary judgment, a party must show that there is no genuine issue of material fact and that it is entitled to summary
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009); Nixon v. Mr.
Prop. Mgt. Co. , 690 S.W.2d 546, 548 (Tex. 1985).
II. Information protected by the attorney-client privilege is not subject to
disclosure under the TPIA.
A. The TPIA requires disclosure of public information unless an exception applies.
The TPIA provides, “it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete
information about the affairs of government and the official acts of public
officials and employees.” Tex. Gov’t Code § 552.001. A completed
investigation is considered public information under the TPIA unless it is
subject to an exception. Section 552.022 of the TPIA provides, in relevant part:
The following categories of information are public information and not exempted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.]
Tex. Gov’t Code § 552.022(a)(1).
The “information at issue” in this case consists of portions of a completed investigation made by the City’s OIG. Therefore, as part of a
completed investigation, it must be released unless it is excepted from
disclosure under section 552.108 of the TPIA or is expressly confidential under
“other law.” Id. For the reasons set forth below, the information at issue is
confidential by law under Texas Rule of Evidence 503.
B. Texas Rules of Evidence comprise “other law” that makes information “expressly confidential” and not subject to disclosure under the TPIA.
While considering a similar issue, the Texas Supreme Court ruled that the Texas Rules of Evidence are such “other law” which makes information
“expressly confidential” in the context of section 552.022 of the TPIA. See In re
City of Georgetown , 53 S.W.3d 328, 336 (Tex. 2001); see also Abbott v. City of
Dallas , 453 S.W.3d 580, 588-89 (Tex. App.—Austin 2014, pet. filed) (noting
that the attorney-client privilege is “the ‘oldest of privileges for confidential
communications known to the common law’” and holding that the privilege
was not waived by missing a TPIA deadline) (quoting Upjohn Co. v. United
States , 449 U.S. 383, 389, 101 S. Ct. 677 (1981)).
*19 C. The attorney-client privilege.
The attorney-client privilege protects from disclosure confidential communications between client and counsel made for the purpose of
facilitating the rendition of legal services. Tex. R. Evid. 503(b); Huie v.
DeShazo , 922 S.W.2d 920, 922 (Tex. 1996). The privilege attaches to the
complete communication—legal advice and factual information—between
attorney and client, and the subject matter of the information in the
communication is irrelevant to the determination of whether the privilege
applies. In re Valero Energy Corp ., 973 S.W.2d 453, 457 (Tex. App.—Houston
[14th Dist.] 1998, no pet.) (citing Marathon Oil Co . v. Moye , 893 S.W.2d 585,
589 (Tex. App.—Dallas 1994, orig. proceeding)).
Texas Rule of Evidence 503(b)(1) provides:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
(A) between the client or a representative of the client and the client’s lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer’s representative; (C) by the client or a representative of the client, or the client’s lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; *20 (D) between representatives of the client or between the client and a representative of the client; or
(E) among lawyers and their representatives representing the same client.
Tex. R. Evid. 503(b)(1). A communication is “confidential” if it is “not
intended to be disclosed to third persons other than those to whom disclosure
is made in furtherance of the rendition of professional legal services to the
client or those reasonably necessary for the transmission of the
communication.” Id. 503(a)(5).
Rule 503 was amended in 1998, replacing the “control group” test with the “subject matter” test to determine whether a communication was made
between a representative of a client and the client’s lawyer. See In re E.I. DuPont
de Nemours and Co ., 136 S.W.3d 218, 226 n.3 (Tex. 2004); accord Upjohn , 449
U.S. at 394-97 (rejecting the “control group test” and applying the attorney-
client privilege to interviews between employees and company lawyers in the
course of an internal investigation into illegal payments to foreign
governments). “[T]he privilege exists to protect not only the giving of
professional advice to those who can act on it but also the giving of
information to the lawyer to enable him to give sound and informed advice.”
Upjohn , 449 U.S. at 390 (citations omitted).
*21 In Texas, “[t]he subject matter test is met where ‘the employee makes the communication at the direction of his superiors in the corporation and where
the subject matter upon which the attorney’s advice is sought by the
corporation and dealt with in the communication is the performance by the
employee of the duties of his employment.’” DuPont , 136 S.W.3d at 226 n.3
(quoting Nat’l Tank Co. v. Brotherton , 851 S.W.2d 193 (Tex. 1993)). A
“representative of the client” is not limited to upper management employees,
but instead includes “any other person who, to facilitate the rendition of
professional legal services to the client, makes or receives a confidential
communication while acting in the scope of employment for the client.” Tex.
R. Evid. 503(a)(2)(B).
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.
Harlandale , 25 S. W.3d 328 (entire report privileged and not subject to
disclosure); Tex. Att’y Gen. Op. No. OR2014-02684 at 3, 2014 WL 1254396 at
*2 (Feb. 12, 2014) (CR_27) (citing and relying on Harlandale to find that most
of the City’s documents in its investigative file were protected by attorney-
client privilege in this case ); accord Upjohn , 449 U.S. at 395 (all of the interviews
*22 and questionnaires circulated by general counsel to employees were protected
by privilege).
III. The information at issue was part of an internal investigation
conducted at the behest of the City by City attorneys at OIG to provide legal advice to the City.
The information at issue consists of interviews conducted in the course of an internal investigation by the OIG into alleged wrongdoing by City
employees in a City department. IAI at AG Jenkins(Brooks)00008-14, 00024-
28; CR_22. These interviews are part of the OIG’s investigative file and are
incorporated into the OIG’s investigative report. CR_22. In its opinion letter,
the Attorney General ruled that most of the information that was part of the
internal investigation was protected by the attorney-client privilege based on
Harlandale , 25 S.W.3d 328. CR_27.
Even though Harlandale held that all of the material that was part of the report was privileged and could not be segregated out piecemeal, 25 S.W.3d at
333-34, the Attorney General and the trial court in this case have held exactly
the opposite, contending that two interviews conducted in the course of that
investigation and made part of the report are not privileged because those
employees were being questioned about their own conduct in addition to
conduct of others in the department. CR_42. Yet, this Court’s precedent and
other case law hold that the entire investigative report from an attorney’s
internal investigation conducted at the behest of a corporate client is protected
by attorney-client privilege, without regard to whether some of the
interviewees had committed the wrongdoing under investigation.
A. The Attorney General’s piecemeal approach to the investigative file is contrary to this Court’s precedent and other case law.
In Harlandale , a police sergeant who was reprimanded for inappropriate conduct had filed a formal grievance, which prompted Harlandale to hire an
attorney to investigate the facts and write a report with recommendations. 25
S.W.3d at 329-30. After the attorney had conducted numerous interviews and
wrote a report which included her findings and recommendations, a requestor
asked for the report and all of the supporting exhibits pursuant to the TPIA. Id .
at 330. Harlandale timely requested an opinion letter from the AG, claiming
attorney-client privilege. Id . The AG’s opinion letter in Harlandale parsed the
report for the purposes of attorney-client privilege, holding that certain sections
were “factual” and had to be disclosed while other parts could be withheld. 25
S.W.3d at 330 & nn.1, 2. This Court reversed and rendered for Harlandale,
explaining that the entire report was privileged where the attorney was hired to
investigate and give legal advice. Id . at 333-34.
Here, the Attorney General is again trying to parse an investigative report that is covered by attorney-client privilege, recognizing that “most” of
the information that was part of the investigation is protected by attorney-client
privilege, but then selecting out two interviews as allegedly “not privileged”
because the interviewees were purportedly subjects of the investigation.
CR_27. But this Court has already rejected the Attorney General’s piecemeal
approach to an investigative report in Harlandale . There is no basis for the
Attorney General to find that parts of the report should be subject to disclosure
while finding the rest of the investigative file to be privileged.
The United States Supreme Court’s sound reasoning in Upjohn Company v. United States is also instructive here, because the facts in Upjohn are similar to
this case and because the Texas attorney-client privilege standard is similar to
the federal standard. [3] 449 U.S. 383. In Upjohn, the client-corporation
discovered that at least one of its overseas subsidiaries had made “questionable
payments” to foreign governments. Id . at 386. Upjohn’s general counsel
conducted interviews and sent out questionnaires to numerous employees as
part of an internal investigation to gather facts and render advice to Upjohn.
*25 Id . at 386-87. The investigation in Upjohn , as here, involved queries of lower-
level employees who were close enough to the actual events that their input as
interviewees was invaluable to enable counsel to give Upjohn the legal advice
to know how to proceed to rectify its situation. Id . at 391; IAI at AG
Jenkins(Brooks)00008-14, 00024-28. When the Internal Revenue Service
sought those interviews and questionnaires in a subsequent enforcement
action, the Court held that the interviews and questionnaires of employees—
regardless of whether they were lower level employees or part of a “control
group”—were protected by attorney client privilege. Upjohn , 449 U.S. at 391-
92, 395.
The Attorney General’s distinction that some of the interviewees were “targets” of the investigation lacks merit, because nothing in Upjohn suggests
that the Court made a distinction between interviews and questionnaires from
the actual employees responsible for the “questionable payments” and those in
the company who were not making the “possibly illegal” payoffs. In fact,
implicit in the Supreme Court’s holding is that the very people who were most
helpful to interview were those at the center of, and even perpetrating, the
misconduct. See id . at 391 (commenting that lower-level employees by their
actions in the scope of their employment can “embroil” the corporation into
legal difficulties and therefore their information is highly relevant and helpful).
In re USA Waste Management Resources, L.L.C. is also helpful here. 387 S.W.3d 92 (Tex App.—Houston [14th Dist.] 2012, orig. proceeding).
Defendant Waste Management sought protection from the disclosure of a
communication between its counsel and a former employee, Royda Jennings
(Jennings). Id . at 95. Jennings was terminated after she was deposed in a third
party case because her testimony contradicted information she gave to Waste
Management in the course of that investigation. Id . Jennings sought to
introduce an affidavit divulging the conversation between Waste
Management’s counsel and Jennings in preparation for her deposition. Id . On
mandamus to prevent the court-ordered disclosure, the appellate court
determined that the communication was privileged and not subject to
disclosure because: 1) the communication was made at the direction of a
supervisor in the corporation; and 2) the subject matter upon which the
attorney’s advice was sought is the performance by the employee of the
employee’s duties of her employment. Id . at 96, 97-98. The court reasoned that
because Waste Management had a policy in place requiring full cooperation
with investigations into workplace violence, and because Waste Management
took steps to ensure that the conversation remained confidential, Waste
Management had met its burden that the communication between Waste
Management’s counsel and Jennings was privileged. Id . at 97-98.
*27 As in Upjohn , Harlandale , and Waste Management , the City’s interviews with employees who were present when the wrongdoing occurred, either as
witnesses or possible wrongdoers, was invaluable to the City’s discovery of the
extent and nature of the problems in a City department and to obtaining the
legal advice on how to address it. The interviewees cooperated with the
investigation pursuant to City policy of full cooperation with OIG
investigations. AG Jenkins(Brooks)00008, 00024 at ¶ 3; CR_16. As part of the
internal investigation, the interviews are privileged regardless of whether the
interviewees’ conduct was a subject of the communication. See Valero , 973
S.W.2d at 457 (the content of the communication does not matter for purposes
of the attorney-client privilege).
Furthermore, the entire investigative report—including the factual interviews—was protected by the attorney-client privilege in Harlandale . 25
S.W.3d at 333. All of the interviews and questionnaires in Upjohn were
protected by the privilege, 449 U.S. at 395, and all of the substance of the
interview with Jennings was protected in Waste Management . 387 S.W.3d at 98.
Accordingly, the interviews at issue were part of the City’s internal
investigation and are privileged, just like the interviews in Harlandale , Upjohn ,
and Waste Management .
B. The parties involved in each communication at issue are identified on the face of the documents in question as being an attorney for the City and a City employee.
The information at issue identifies OIG attorney Sandra W. Robinson as being from the “Office of Inspector General,” and the personnel sheet lists her
as working in the Legal Department. AG Jenkins(Brooks)00008, 00024 at ¶ 3;
CR_19. In both statements at issue, the affiants state that they are employed by
the City and provide their employee numbers. AG Jenkins(Brooks)00008,
00024 at ¶ 2. Accordingly, the documents identify the parties as a lawyer for
the City and a City employee, and instruct that the employee is to cooperate
fully in the investigation and keep the communication confidential. Id .
C. Counsel for the City conducted the internal investigation in order to give advice to the City as the client.
Just as outside counsel in Harlandale and in-house counsel in Upjohn and Waste Management were tasked with conducting internal investigations and
recommending legal courses of action for their corporate clients, the attorneys
in the OIG are the City’s attorneys tasked with investigating and reporting
facts and recommending a legal course of action for the City. Harlandale , 25
S.W.3d at 335; Upjohn , 449 U.S. at 390-91; Waste Management , 387 S.W.3d at
95; CR_14-16, 19. Like the attorney in Harlandale , the OIG compiled a report
after conducting interviews with several employees, and the “Information at
Issue” in this case was 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.
D. The communication is and has remained confidential.
Like Waste Management and Upjohn , the City took steps to ensure and maintain the confidentiality of the communications. Waste Management , 387
S.W.3d at 97; Upjohn , 449 U.S. at 395; IAI at AG Jenkins(Brooks)00008,
00024) (instructing interviewees that the statements are confidential and
expressly prohibiting copying or distribution of same). The City admonished
each interviewee not to discuss the investigation with anyone except that
person’s lawyer, and threatened prosecution if any non-employees (i.e.,
Jenkins or others) disseminated the document illegally. IAI at AG
Jenkins(Brooks)00008, 00024. There is no indication or evidence that any third
parties were present during the communication or that Jenkins represented
either interviewee whose statements are at issue.
E. The communication was made at the direction of the City and pursuant to the City’s policy of full employee cooperation with the OIG.
As mentioned above, both of the interviews at issue were between an attorney for the City and a City employee interviewed at the behest of the
client-City. IAI at AG Jenkins(Brooks)00008, 00024. City policy requires all of
its employees to cooperate with an OIG investigation; failure to do so is
considered employee misconduct. CR_16. The interviewees were summoned
by the OIG to give statements about their everyday work procedures and were
questioned about documentation protocols for a program run by the City
department in which they worked. IAI at AG Jenkins(Brooks)00009-14,
00025-28. While it is true that the boilerplate preamble to the statement states
that the individual interviewees were furnishing voluntary statements not as a
condition of employment, each interviewee was expected, as part of their duty
as City employees, to cooperate fully with the investigation. CR_16; IAI at AG
Jenkins(Brooks)00008, 00024. Indeed, the employees were specifically
instructed to give full information about the situation to the OIG. IAI at AG
Jenkins(Brooks)00008, 00024. The employees’ cooperation with the
investigation furthered the City’s purposes to obtain legal advice about the
prudent course of action regarding alleged wrongdoing in a City department.
CR 9, 12; IAI at AG Jenkins(Brooks)00008, 00024.
Additionally, cooperating with the OIG investigation is part of the subject matter of each employee’s job. CR_14-16, 19, IAI at AG
Jenkins(Brooks)00008-14, 00024-28. The interviews themselves concerned the
subject matter of the employee’s employment, with the questions relating to
day-to-day procedures and protocols used by each employee and a recounting
of what happened on the job on key days in question. IAI at AG
Jenkins(Brooks)00008-14, 00024-28. These interviews aided the OIG in
obtaining a picture of what happened so that it could recommend a legal
course of action to help the City program. AI at AG Jenkins(Brooks)00008-14,
00024-28.
F. The factual information Jenkins seeks is available through other means.
Additionally, like those seeking the protected material in Harlandale and Upjohn , nothing prevents Jenkins from seeking out the individual employees to
gather her own set of facts about what occurred in the department. See
Harlandale , 25 S.W.3d at 335 (stating that “[i]n weighing these competing
concerns [between the TPIA 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 City attorney’s communication with the interviewees was conducted for the purpose of rendering legal advice to the City, was performed
pursuant to City policy that all employees must cooperate fully with OIG
investigations, was kept confidential, and concerned the subject matter for
which the advice was sought: to receive an informed legal recommendation on
the course of action regarding the possible wrongdoing in a City department.
See, e.g. , Harlandale , 25 S.W.3d at 334-35 (attorney investigating facts and
making recommendations is functioning as an attorney for the entire
communication); see also Dunn v. State Farm Fire & Cas. Co. , 927 F.2d 869, 875
(5th Cir. 1991) (attorney who performs tasks of an investigator in the process
of providing legal services is functioning as an attorney); CR_12; 14-16; 19.
Accordingly, the Court should reverse and render judgment for the City that
the information at issue is protected by attorney client privilege and is not
subject to disclosure.
IV. The City did not waive its privilege with respect to the Information at
Issue.
A. The Attorney General has no evidence and there is no indication that the City disclosed the information at issue.
Although it would have been the City’s prerogative to refer a wrongdoer for criminal prosecution if a crime was uncovered, there is no evidence that
either of the interviewees in question were ever referred to law enforcement,
despite the Attorney General’s insinuation that the mere possibility of referral
waives the privilege. See CR_28 (City’s investigation was complete). The
privilege belongs to the City, as the client, and unless the City waives it, the
attorney cannot be compelled to disclose matters that come within that
privilege. West v. Solito , 563 S.W.2d 240, 244 n.2 (Tex. 1978). In addition, had
the City referred the interviewees for prosecution, the exception for an ongoing
criminal investigation would have applied to bar disclosure under the TPIA.
See Tex. Gov’t Code § 552.108; CR_27-28. In sum, there is no evidence that
either of the interviews at issue has ever been divulged to anyone outside the
City apart from in camera review by adjudicators as allowed by law. [4]
*34 B. Making the Brooks statement available to his attorney does not waive the privilege for the information at issue.
Although the Attorney General states that “[t]he underlying PIA request was in fact made by an attorney acting on behalf of one of the employees in
question,” CR_42 n.5, this gives an incorrect impression. Jenkins represented
Brooks, but there is no indication or evidence that she represented anyone else
in connection with this matter. The information at issue involves
communications with other employees and not Brooks. See IAI at AG
Jenkins(Brooks)00008-14, 00024-28 (Brooks is not the witness in either
interview at issue). The City has made Brooks’ testimony available to his
lawyer, and that communication is not at issue here. Id . Nor does the City’s
disclosure of Brooks’ testimony to his own lawyer operate as a waiver to the
other documents—the information at issue—that have not been disclosed. See
In re Carbo Ceramics Inc ., 81 S.W.3d 369, 376-77 (Tex. App.—Houston [14th
Dist.] 2002, orig. proceeding) (holding that the voluntary disclosure of a letter
“is not an automatic blanket waiver of the privilege for all other documents
withheld on the basis of attorney-client privilege” where only the one
document was disclosed); Marathon Oil , 893 S.W.2d at 592 (holding that the
voluntary disclosure of some documents is not “an automatic, blanket waiver
of the privilege for all underlying documents” that were not disclosed); Nat’l
Union Fire Ins. Co. v. Hoffman , 746 S.W.2d 305, 311 (Tex. App.—Dallas 1988,
orig. proceeding) (trial court abused its discretion to find a blanket waiver).
Thus, although the City made Brooks’ own statement available to his lawyer, it did not permit Brooks to be privy to interviews from other employees ,
because those interviews are confidential communications. 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 in 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). Neither Brooks nor
Jenkins is entitled to the contents of the communications between City lawyers
and other employees , whether or not those employees were found to have been
part of the problem with the City’s program.
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 when, as here, it is gleaned in the
course of an investigation which is in furtherance of the client—the City—
obtaining legal counsel about what course of action to take based on the
findings in that investigation. See Harlandale , 25 S.W.3d at 334-35; Upjohn , 449
*36 U.S. at 394. No waiver occurred, and thus the information at issue is protected
by attorney-client privilege.
Conclusion and Prayer Because the City established that the information at issue is a confidential communication between representatives of the client-City and the
City’s counsel for the purpose of aiding the City in obtaining legal advice, and
there is no evidence that the privilege has been waived, the Court should
reverse and render judgment for the City that the remaining information at
issue is not subject to disclosure.
For the foregoing reasons, the City respectfully requests that the Court: 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
5,727 words.
/s/ Mary Beth Stevenson Mary E. (Mary Beth) Stevenson *38 Certificate of Service
I hereby certify that on this 24th day of June, 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 *39 Exhibit A
Filed in The District Couit of Travis County, Texas E R O C T 28 2014 CAUSE NO. D-1-GV-14-000227 L 7 At Amaa Rodriguez.M, doza, THE CITY OF HOUSTON, TEXAS, IN THE DISTRICT COURT OF § P l a i n ti ff §
§ v. § 250 t h JUDICIAL DISTRICT § §
GREG ABBOTT’, ATFORNEY GENERAL OF TEXAS, § § TRAVIS COUNTY, TEXAS D e f e nd a n t .
F I NA L J UDG M E N T On October 28, 2014, a h ea r i ng was h e l d on t h e parties’ m o ti on s for s u mm a r y j udg m e n t . Plaintiff City of Houston, Texas (the City) a nd D e f e nd a n t Greg Abbott,
A tt o r n e y General of Texas, a pp ea r e d t h r ough counsel. This is a l a w s u it und e r t h e Public
I n f o r m a ti on Act, by which Plaintiff s ough t relief from a ruling of t h e A tt o r n e y General.
The Court, having c on s i d e r e d t h e t e s ti m ony a nd do c u m e n t a r y evidence, t h e pleadings,
a nd a r gu m e n t s of counsel, e n t e r s t h e following d ec l a r a ti on a nd o r d e r s .
IT IS THEREFORE ORDERED AND DECLARED t h a t Defendant’s Cross-Motion for Summary J udg m e n t is GRANTED, a nd P l a i n ti ff s Cross-Motion for S u mm a r y
J udg m e n t is DENIED. It is f u r t h e r ORDERED t h a t t h e i n f o r m a ti on at issue is not
privileged pu r s u a n t to Rule [503] of t h e Texas Rules of Evidence a nd t h e City m u s t
disclose this i n f o r m a ti on to t h e r e qu e s t o r .
This Order d i s po s e s of all claims between all p a r ti e s a nd is a final j udg m e n t . S i gn e d t h i s ‘m d a yo f ( j ’ c () — , [2014] .
AGREED AS TO FORM:
MAURNGER DAVIDL. ED
State Bar No. 240 9723 State Bar No. 16656900
Assistant Attorney General Senior Assistant City Attorney
Open Records Litigation City of Houston’s City Attorney’s Office
Administrative Law Division P.O. Box 368
P.O. Box 12548, Capitol Station Houston, Texas 77001-0368
Austin, Texas 78711-2548 Telephone: (832) 393-6293 Facsimile: (832) 393-6259
Telephone: (512) 475-4151
Facsimile: (512) 457-4686 david.red@houstontx.gov
matthewentsminger@texasattorneygeneral.gov ATI’ORNEY FOR PLAINTIFF CITY OF ATJ’ORNEY FOR DEFENDANT GREG ABBOrr, HOUSTON, TEXAS
ArFORNEY GENERAL OF TEXAS
Final Judgment Page [2] of [2]
Cause No, D-1-GV-14-ooo227
Exhibit B
Rule 503. Lawyer-Client Privilege, TX R EVID Rule 503
Vernon’s Texas Rules Annotated Texas Rules of Evidence (Refs & Annos) Article V. Privileges (Refs & Annos)
TX Rules of Evidence, Rule 503
Rule 503. Lawyer-Client Privilege
(a) Definitions. In this rule:
(1) A “client” is a person, public officer, or corporation, association, or other organization or entity--whether public or
private--that:
(A) is rendered professional legal services by a lawyer; or
(B) consults a lawyer with a view to obtaining professional legal services from the lawyer.
(2) A “client’s representative” is:
(A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal
advice rendered; or
(B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a
confidential communication while acting in the scope of employment for the client.
(3) A “lawyer” is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or
nation.
(4) A “lawyer’s representative” is:
(A) one employed by the lawyer to assist in the rendition of professional legal services; or
(B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services.
(5) A communication is “confidential” if not intended to be disclosed to third persons other than those:
(A) to whom disclosure is made to further the rendition of professional legal services to the client; or © 2015 Thomson Reuters. No claim to original U.S. Government Works. [1] *44 Rule 503. Lawyer-Client Privilege, TX R EVID Rule 503
(B) reasonably necessary to transmit the communication.
(b) Rules of Privilege.
(1) General Rule . A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential
communications made to facilitate the rendition of professional legal services to the client:
(A) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative;
(B) between the client’s lawyer and the lawyer’s representative;
(C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing
another party in a pending action or that lawyer’s representative, if the communications concern a matter of common
interest in the pending action;
(D) between the client’s representatives or between the client and the client’s representative; or
(E) among lawyers and their representatives representing the same client.
(2) Special Rule in a Criminal Case . In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s
representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by
reason of the attorney-client relationship.
(c) Who May Claim. The privilege may be claimed by:
(1) the client;
(2) the client’s guardian or conservator;
(3) a deceased client’s personal representative; or
(4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity--whether or
not in existence.
The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim
the privilege on the client’s behalf--and is presumed to have authority to do so.
(d) Exceptions. This privilege does not apply:
(1) Furtherance of Crime or Fraud . If the lawyer’s services were sought or obtained to enable or aid anyone to commit or
plan to commit what the client knew or reasonably should have known to be a crime or fraud. © 2015 Thomson Reuters. No claim to original U.S. Government Works. [2] *45 Rule 503. Lawyer-Client Privilege, TX R EVID Rule 503
(2) Claimants Through Same Deceased Client . If the communication is relevant to an issue between parties claiming
through the same deceased client.
(3) Breach of Duty By a Lawyer or Client . If the communication is relevant to an issue of breach of duty by a lawyer to
the client or by a client to the lawyer.
(4) Document Attested By a Lawyer . If the communication is relevant to an issue concerning an attested document to
which the lawyer is an attesting witness.
(5) Joint Clients . If the communication:
(A) is offered in an action between clients who retained or consulted a lawyer in common;
(B) was made by any of the clients to the lawyer; and
(C) is relevant to a matter of common interest between the clients.
Rules of Evid., Rule 503, TX R EVID Rule 503
Current with amendments received through 3/15/2015 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. [3] *46 Exhibit C
§ 552.3221. In Camera Inspection of Information, TX GOVT § 552.3221
Vernon’s Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 5. Open Government; Ethics (Refs & Annos) Subtitle A. Open Government
Chapter 552. Public Information (Refs & Annos) Subchapter H. Civil Enforcement
V.T.C.A., Government Code § 552.3221 § 552.3221. In Camera Inspection of Information Effective: September 1, 2013
(a) In any suit filed under this chapter, the information at issue may be filed with the court for in camera inspection as is
necessary for the adjudication of the case.
(b) Upon receipt of the information at issue for in camera inspection, the court shall enter an order that prevents release to or
access by any person other than the court, a reviewing court of appeals, or parties permitted to inspect the information
pursuant to a protective order. The order shall further note the filing date and time.
(c) The information at issue filed with the court for in camera inspection shall be:
(1) appended to the order and transmitted by the court to the clerk for filing as “information at issue”;
(2) maintained in a sealed envelope or in a manner that precludes disclosure of the information; and
(3) transmitted by the clerk to any court of appeal as part of the clerk’s record.
(d) Information filed with the court under this section does not constitute “court records” within the meaning of Rule 76a,
Texas Rules of Civil Procedure, and shall not be made available by the clerk or any custodian of record for public inspection.
(e) For purposes of this section, “information at issue” is defined as information held by a governmental body that forms the
basis of a suit under this chapter.
V. T. C. A., Government Code § 552.3221, TX GOVT § 552.3221
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. [1] *48 Exhibit D
§ 552.324. Suit by Governmental Body, TX GOVT § 552.324
Vernon’s Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 5. Open Government; Ethics (Refs & Annos) Subtitle A. Open Government
Chapter 552. Public Information (Refs & Annos) Subchapter H. Civil Enforcement
V.T.C.A., Government Code § 552.324
§ 552.324. Suit by Governmental Body
Effective: September 1, 2009
(a) The only suit a governmental body may file seeking to withhold information from a requestor is a suit that:
(1) is filed in a Travis County district court against the attorney general in accordance with Section 552.325; and
(2) seeks declaratory relief from compliance with a decision by the attorney general issued under Subchapter G. [1]
(b) The governmental body must bring the suit not later than the 30th calendar day after the date the governmental body
receives the decision of the attorney general determining that the requested information must be disclosed to the requestor. If
the governmental body does not bring suit within that period, the governmental body shall comply with the decision of the
attorney general. If a governmental body wishes to preserve an affirmative defense for its officer for public information as
provided in Section 552.353(b)(3), suit must be filed within the deadline provided in Section 552.353(b)(3).
V. T. C. A., Government Code § 552.324, TX GOVT § 552.324
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. [1] *50 Exhibit E
§ 552.108. Exception: Certain Law Enforcement, Corrections,..., TX GOVT § 552.108
Vernon’s Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 5. Open Government; Ethics (Refs & Annos) Subtitle A. Open Government
Chapter 552. Public Information (Refs & Annos) Subchapter C. Information Excepted from Required Disclosure
V.T.C.A., Government Code § 552.108 § 552.108. Exception: Certain Law Enforcement, Corrections, and Prosecutorial Information. Effective: September 1, 2005
(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution
of crime is excepted from the requirements of Section 552.021 if:
(1) release of the information would interfere with the detection, investigation, or prosecution of crime;
(2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation
that did not result in conviction or deferred adjudication;
(3) it is information relating to a threat against a peace officer or detention officer collected or disseminated under Section
411.048; or
(4) it is information that:
(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal
litigation; or
(B) reflects the mental impressions or legal reasoning of an attorney representing the state.
(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters
relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if:
(1) release of the internal record or notation would interfere with law enforcement or prosecution;
(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in
conviction or deferred adjudication; or
(3) the internal record or notation: © 2015 Thomson Reuters. No claim to original U.S. Government Works. [1] *52 § 552.108. Exception: Certain Law Enforcement, Corrections,..., TX GOVT § 552.108
(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal
litigation; or
(B) reflects the mental impressions or legal reasoning of an attorney representing the state.
(c) This section does not except from the requirements of Section 552.021 information that is basic information about an
arrested person, an arrest, or a crime.
V. T. C. A., Government Code § 552.108, TX GOVT § 552.108
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. [2]
[2] Although two other documents were part of the “Information at Issue” submitted to the trial court for in camera review, the City has made AG Jenkins(Brooks)00002 (a letter) and AG Jenkins(Brooks)00004 (a letter) available to the requestor and those are not at issue on appeal.
[3] Cf. Upjohn , 449 U.S. 383 (rejecting “control group” as the standard for attorney-client privilege in the corporate context and allowing for communications with lower- and middle- level employees to be privileged where they are conducted at the request of supervisors and concern the subject matter of their employment) with DuPont , 136 S.W.3d at 226 n.3 (explaining that amended Texas Rule of Evidence 503 replaced the control group test with the subject matter test); see also Alpert v. Riley , 267 F.R.D. 202, 208 (S.D. Tex. 2010) (finding that Texas Rule of Evidence 503 requirements for establishing privilege are similar to those required under federal common law); Harlandale , 25 S.W.3d at 333-34 (citing and finding instructive several federal cases, including Upjohn ).
[4] The Attorney General and the reviewing courts have reviewed the documents in camera as permitted by law. See Marathon Oil , 893 S.W.2d at 593 (“As a reviewing court, we may conduct our own in camera inspection to determine whether a trial court properly applied the law of privilege to the documents.”) (citing Barnes v. Whittington , 751 S.W.2d 493, 495 (Tex. 1988) (orig. proceeding)); see also Tex. Gov’t Code § 552.301(e)(1)(D) (providing the procedure for seeking an opinion from the Attorney General on documents subject to an exception under the TPIA); id . § 552.3221 (allowing for in camera inspection of the information at issue).