Texas Department of Public Safety v. Cox Texas Newspapers, LP and Hearst Newspapers, LLC

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00516-CV

Texas Department of Public Safety, Appellant

v.

Cox Texas Newspapers, LP and Hearst Newspapers, LLC, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-07-004116, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

OPINION

This is a lawsuit brought pursuant to the Texas Public Information Act. The appellee

newspapers filed suit against appellant, the Texas Department of Public Safety (DPS), seeking

access to vouchers that relate to travel by the Texas Governor. The district court granted the relief

requested by appellees. The DPS argues that the vouchers are confidential due to (1) the common-

law right of privacy, based on special circumstances of an imminent threat of physical danger,

and (2) a constitutional privacy interest under the Fourteenth Amendment of the United States

Constitution, based on a substantial risk of serious bodily harm from a perceived likely threat. We

affirm the judgment of the district court.

Factual and Procedural Background

Appellee Cox Texas Newspapers, LP publishes six daily newspapers in Texas,

including the Austin American-Statesman. On July 2, 2007, the DPS received a written request
from Cox Texas Newspapers, seeking “travel vouchers for Gov. Rick Perry’s security detail

for all trips out of state” during 2001 and from January through June of 2007. Appellee Hearst

Newspapers, LLC publishes eleven newspapers in Texas, including the San Antonio Express-News

and the Houston Chronicle. On August 8, 2007, the DPS received a written request from Hearst

Newspapers seeking “access to or copies of travel vouchers for Gov. Rick Perry’s security detail.”

The requested vouchers relate to the Governor Protective Detail division of the DPS, which provides

security for the Governor, his family, and foreign dignitaries visiting Texas. Members of this

division accompany the Governor when he travels. In order to receive reimbursement from the DPS

for expenses incurred during such travels, a member of the division must submit a voucher to

the DPS itemizing the expenses incurred. The DPS collects, assembles, and maintains these

travel vouchers.

The DPS requested rulings from the Texas Attorney General that the information

sought by appellees was excepted from required disclosure under the Public Information Act. See

Tex. Gov’t Code Ann. § 552.301(a), (b), (e) (West Supp. 2008). The attorney general determined

that the information requested by appellees was confidential and, therefore, that the DPS must

withhold the information in its entirety. See Tex. Att’y Gen. OR2007-11405 (2007).

Appellees filed suit against the DPS on November 29, 2007, seeking a writ of

mandamus to compel the disclosure of the vouchers under the Public Information Act. See

Tex. Gov’t Code Ann. § 552.321 (West 2004); Thomas v. Cornyn, 71 S.W.3d 473, 481

(Tex. App.—Austin 2002, no pet.). Following a bench trial, the district court concluded that

the information sought by appellees was not confidential. The district court entered judgment on

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August 1, 2008, granting appellees’ petition for writ of mandamus compelling the DPS to produce

the vouchers to appellees as requested. On appeal, the DPS asserts: (1) the evidence is legally and

factually insufficient to support the district court’s finding that public disclosure of the vouchers

would not “put any person in an imminent threat of physical danger,” and therefore, the vouchers

are confidential based on a “special circumstances” component of the common-law right of privacy;

and (2) the evidence is legally and factually insufficient to support the district court’s finding that

public disclosure of the vouchers would not “create a substantial risk of serious bodily harm from

a perceived likely threat,” and therefore, the vouchers are confidential based on a constitutional

privacy interest under the Fourteenth Amendment.

Analysis

Under the Public Information Act (the “PIA”), “public information” includes

information that is “collected, assembled, or maintained . . . in connection with the transaction of

official business” by a governmental body. Tex. Gov’t Code Ann. § 552.002(a) (West 2004). The

PIA does not authorize a governmental body’s withholding of public information except as expressly

provided. Id. § 552.006 (West 2004). The PIA is to be liberally construed in favor of granting

requests for information. Id. § 552.001(b) (West 2004). As a general rule, information must be

disclosed to the public. See id. § 552.021 (West 2004). While the PIA contains multiple exceptions

to this general rule, see id. §§ 552.101-.148 (West 2004 & Supp. 2008), certain information

is excepted from required disclosure only if it is “expressly confidential under other law,” see id.

§ 552.022(a) (West 2004). This type of information includes “information in an account, voucher,

or contract relating to the receipt or expenditure of public or other funds by a governmental body.”

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Id. § 552.022(a)(3). The parties agree that the vouchers requested by appellees contain this type

of information. Therefore, for the vouchers to be withheld as requested by the DPS, some law

other than the PIA must make them confidential. See In re City of Georgetown, 53 S.W.3d 328,

331 (Tex. 2001).

Common-law right of privacy

The DPS argues that the vouchers are confidential based on the common-law right

to privacy. See Center for Econ. Justice v. American Ins. Ass’n, 39 S.W.3d 337, 348

(Tex. App.—Austin 2001, no pet.) (common law serves as “other law” under section 552.022(a)

of the PIA). The Texas Supreme Court has held that information is protected from disclosure

under the PIA by a common-law right of privacy if: “(1) the information contains highly intimate

or embarrassing facts the publication of which would be highly objectionable to a reasonable person,

and (2) the information is not of legitimate concern to the public.” Industrial Found. of the S.

v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The DPS concedes that the

vouchers do not contain any “highly intimate or embarrassing facts.” Therefore, in accordance with

Industrial Foundation, the common-law right of privacy does not apply to the vouchers.

The DPS argues, however, that the common-law right of privacy incorporates

a “special circumstances” exception, such that a governmental entity must withhold information

if its disclosure would likely cause someone to face an imminent threat of physical danger. A

“special circumstances” exception has appeared in open records decisions by the attorney general.

See Tex. Att’y Gen. ORD-169 (1977); Tex. Att’y Gen. ORD-123 (1976). In Open Records

Decision 169, the attorney general considered whether state employees’ home addresses could be

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withheld under the PIA’s “personnel information” exception to disclosure. Tex. Att’y Gen. ORD-

169, at 1; see Tex. Gov’t Code Ann. § 552.102 (West 2004) (personnel information exception). The

attorney general recognized that while an employee’s home address generally “cannot be considered

a highly intimate or embarrassing fact,” it could be withheld in the case of “special circumstances,”

which would include “an imminent threat of physical danger,” as opposed to “a generalized and

speculative fear of harassment or retribution.” Tex. Att’y Gen. ORD-169, at 6.

After the attorney general identified a “special circumstances” exception in the

context of the PIA’s “personnel information” provision, this Court held in Hubert v. Harte-Hanks

Texas Newspapers, Inc., 652 S.W.2d 546 (Tex. App.—Austin 1983, writ ref’d n.r.e.), that the

supreme court’s Industrial Foundation test applicable to the common-law right of privacy is equally

applicable to the personnel information provision. See 652 S.W.2d at 550. This Court’s holding in

Hubert calls into question prior open records decisions by the attorney general that construed

the personnel information provision without applying the Industrial Foundation test, such as

Open Records Decision 169. Nonetheless, the attorney general has continued to apply its special-

circumstances exception in its informal letter rulings:

Ordinarily, information is protected by common law privacy only if (1) the
information contains highly intimate or embarrassing facts, the release of which
would be highly objectionable to a reasonable person, and (2) the information is not
of legitimate concern to the public. See Industrial Found. [540 S.W.2d at] 685.
However, information also may be withheld under section 552.101 in conjunction
with common law privacy upon a showing of certain “special circumstances.” See
Open Records Decision No. 169 (1977).

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Tex. Att’y Gen. OR2005-07052 (2005), at 6. The DPS asks this Court to follow the

attorney general’s analysis and adopt its special-circumstances exception.

We cannot adopt the attorney general’s special-circumstances exception because it

directly conflicts with Texas Supreme Court precedent. The supreme court in Industrial Foundation

declared its two-part test to be the “sole criteria” for the disclosure of information to be deemed a

wrongful publication of private information under common law. See Industrial Found., 540 S.W.2d

at 686; Texas Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 244 S.W.3d 629, 638

(Tex. App.—Austin 2008, pet. granted). We are required to follow the supreme court’s precedent,

see Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.—Austin 2004, no pet.)

(“As an intermediate appellate court, we are not free to mold Texas law as we see fit but must

instead follow the precedents of the Texas Supreme Court unless and until the high court overrules

them or the Texas Legislature supersedes them by statute.”), and decline the DPS’s invitation to

expand the boundaries of common law as established by the supreme court, see Burgess v. El Paso

Cancer Treatment Ctr., 881 S.W.2d 552, 556 (Tex. App.—El Paso 1994, writ denied) (“[C]hanges

in the common law should be left to the Texas Legislature and our Supreme Court.”).1

1
The DPS also cites N.W. Enterprises, Inc. v. City of Houston, 27 F. Supp. 2d 754
(S.D. Tex. 1998), aff’d in part, rev’d in part, 352 F.3d 162 (5th Cir. 2003), to argue that federal
courts have ordered information remain confidential under the PIA because of physical and other
harm that might be caused if the information were released. In N.W. Enterprises, the information
at issue was deemed confidential based on a “First Amendment right to free speech.” 27 F. Supp.
2d at 773. The court addressed whether a governmental body could disclose contact information of
entertainers who work in sexually oriented businesses. See id. at 841-43. The court determined that
if such disclosure were required, some entertainers could experience “unwelcome harassment from
aggressive suitors and overzealous opponents of sexually oriented businesses,” causing the court to
conclude that disclosure of the information would likely have a chilling effect on protected speech.
Id. at 842-43. N.W. Enterprises does not affect our analysis, however, because the DPS does not
allege that any issue of protected speech under the First Amendment is involved in this case.

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 Given the DPS’s concession that the first factor of the Industrial Foundation test for

wrongful publication of private information is not met, the vouchers cannot be withheld based on

the common-law right of privacy.2

Constitutional right of privacy

The DPS next argues that the travel vouchers must be kept confidential based

on a right of privacy under the United States Constitution. According to the DPS, the

Fourteenth Amendment prohibits the DPS from disclosing information if disclosure would create

a substantial risk of serious bodily harm from a perceived likely threat, unless a legitimate state

interest in disclosing the information outweighs the threat to a privacy interest.

A right of privacy is not explicitly mentioned in the Constitution. However, the

Supreme Court has held that a right of personal privacy, or a guarantee of certain areas or zones of

privacy, does exist under the Due Process Clause of the Fourteenth Amendment. See Carey

v. Population Servs. Int’l, 431 U.S. 678, 684 (1977). The cases addressing the constitutional right

of privacy generally involve two different kinds of interests. See Whalen v. Roe, 429 U.S. 589, 598-

99 (1977). One is an individual’s interest in independence in making certain kinds of decisions,

including matters relating to marriage, procreation, contraception, family relationships, and child

rearing and education. See id. at 599-600, 600 n.26. The other is the individual’s interest in

2
The DPS contends that the evidence is legally and factually insufficient to support the
district court’s finding of fact that public disclosure of the information in the vouchers “would
not put any person in an imminent threat of physical danger.” Having concluded that there is no
“special circumstances” exception to the Industrial Foundation test, we need not consider the DPS’s
evidentiary arguments regarding this finding.

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avoiding disclosure of personal matters. See id. at 599. The latter is at issue here. This aspect,

which the Texas Supreme Court has referred to as “disclosural privacy,” encompasses the ability of

individuals to determine for themselves when, how, and to what extent information about them is

communicated to others. Industrial Found., 540 S.W.2d at 679. It is clear, however, that not every

publication of personal information about an individual constitutes an invasion of a constitutionally

protected zone of privacy. Id. at 680.

In its attempt to place the travel vouchers within a constitutionally protected zone of

privacy, the DPS relies exclusively on the Sixth Circuit’s opinion in Kallstrom v. City of Columbus,

136 F.3d 1055 (6th Cir. 1998). In Kallstrom, the plaintiffs were undercover police officers who were

actively involved in the drug conspiracy investigation of a violent gang called the Short North Posse,

and in the prosecution of several gang members on the charges that arose from the investigation.

136 F.3d at 1059. In accordance with Ohio open records law, the City released the plaintiffs’

personnel records—which allegedly included their current addresses and phone numbers, copies of

their drivers licenses, and the names, addresses, and phone numbers of immediate family

members3—to the gang members’ defense counsel, who may have passed the information on to the

gang members themselves. See id. The plaintiffs contended that the dissemination of their personal

information violated their right to privacy as guaranteed by the Due Process Clause of the

Fourteenth Amendment. See id. at 1060. The Sixth Circuit agreed, holding that the plaintiffs’

3
On remand, the Ohio district court revised its findings of fact after receiving copies of the
personnel records released by the City and determining that, contrary to the allegations in the
plaintiffs’ affidavits, most of the personal information had actually been redacted prior to disclosure
of the records. See Kallstrom v. City of Columbus, 165 F. Supp. 2d 686, 700-01 (S.D. Ohio 2001).

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privacy interests implicated a fundamental liberty interest, specifically their interest in preserving

their personal security and bodily integrity. See id. at 1062. According to the Sixth Circuit, the

release of information rises to constitutional dimensions “where the release of private information

places an individual at substantial risk of serious bodily harm, possibly even death, from a perceived

likely threat.” Id. at 1064.

The DPS contends that, as in Kallstrom, release of the travel vouchers would place

the Governor, his family and security detail, and others traveling with the Governor at substantial

risk of serious bodily harm from a perceived likely threat. At trial, Lt. David Armistead, the

head of the Governor Protective Detail division, testified regarding the “magnitude and numerous

threats” that are directed at the Governor and his family. According to Armistead, individuals

seeking to harm the Governor or a member of his travel group could use the information contained

in the vouchers to their tactical advantage by finding “consistencies and patterns in movements

and methods of movements.” Such information could include the number of officers that travel,

how far in advance they arrive, and the identities of hotels, other places frequented, and

transportation used.

We note that no Texas court has followed Kallstrom or determined that constitutional

privacy interests would apply in the type of circumstances at issue in that case.4 We need not

determine whether the Kallstrom test should be followed by Texas courts, however, because even

if we were to apply the Sixth Circuit’s approach in this case, we would conclude that the evidence

4
The Sixth Circuit itself recently observed that “the Kallstrom court broke new ground,” and
that its holding “is virtually unique among courts of appeals.” Barber v. Overton, 496 F.3d 449, 455
(6th Cir. 2007).

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is legally and factually sufficient to support the district court’s finding that public disclosure of

the vouchers “would not . . . create a substantial risk of serious bodily harm from a reasonably

perceived likely threat.”

The DPS, as the governmental body seeking to withhold information, bears the

burden of establishing that the requested information falls within an exception to disclosure under

the PIA. See Thomas, 71 S.W.3d at 488. For a legal sufficiency challenge, we review the evidence

in the light favorable to the verdict, crediting favorable evidence if a reasonable fact-finder could and

disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson,

168 S.W.3d 802, 807 (Tex. 2005). We will sustain the DPS’s point on appeal based on legal

sufficiency only if the evidence conclusively establishes, as a matter of law, a substantial risk

of serious bodily harm from a reasonably perceived likely threat. See Dow Chem. Co. v. Francis,

46 S.W.3d 237, 241 (Tex. 2001). For a factual sufficiency challenge, we consider and weigh all the

evidence in the record, both supporting and against the finding, to decide whether the judgment

should be set aside. Id. at 242. In reviewing appellants’ factual sufficiency challenge, we will

set aside the judgment only if the evidence is so weak or the district court’s finding is so against

the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id.; Cain

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The Sixth Circuit revisited the Kallstrom holding in 2007 and concluded that

“Kallstrom created a narrowly tailored right, limited to circumstances where the information

disclosed was particularly sensitive and the persons to whom it was disclosed were particularly

dangerous vis-a-vis the plaintiffs.” Barber v. Overton, 496 F.3d 449, 456 (6th Cir. 2007). Thus, the

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Sixth Circuit interpreted Kallstrom to require that, for information to be protected by a constitutional

right of privacy based on substantial risk of serious bodily harm from a perceived likely threat, there

must be reason to fear retaliation from the persons to whom the information would be disclosed. See

id. In Kallstrom, for example, the information at issue included current addresses of the plaintiffs

and their family members, and it was disclosed to an attorney who “appear[ed] to have passed [it]

on” to several of the members of a violent gang during the criminal trial in which the plaintiffs were

testifying against the members. Kallstrom, 136 F.3d at 1059. Consequently, for the DPS to succeed

in its evidentiary challenge, there must be similar evidence that would conclusively establish the

existence of a substantial risk of serious bodily harm from a perceived likely threat, or that evidence

of such a risk is so overwhelming as to make a finding of no such risk clearly wrong and unjust.

The evidence in the record does not satisfy this burden. The DPS did not put on

evidence of a substantial risk from a “perceived likely threat.” Rather, the evidence was to the effect

that disclosure of the vouchers at all could result in their falling into the hands of some currently

unknown person or persons who may turn out to be a threat. Armistead testified that “my difficulty,

in my understanding of open records requests, is that goes to anybody, anybody that wants to

make that request.” The DPS’s concern is directed at future, potential, and unknown requestors

and recipients of the same information who might turn out to be threats. Such a concern—relating

to unknown and speculative threats—cannot constitute a “perceived likely threat” in accordance

with the Sixth Circuit case law on which the DPS relies for its constitutional privacy argument.

Therefore, even if the Kallstrom standard accurately reflects the current state of the law as to the

constitutional parameters of privacy in this context, we conclude that the evidence is legally and

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factually sufficient to support the district court’s finding that public disclosure of the vouchers would

not create a substantial risk of serious bodily harm from a perceived likely threat.

Our conclusion does not mean that we attach little significance to the right of privacy

or the DPS’s concern for the safety of the Governor and his travel group. We simply hold that the

DPS’s interest in nondisclosure of travel vouchers based on safety concerns does not implicate

constitutional privacy interests under the current state of the law. Whether the privacy interests at

issue here should merit protection under the PIA is a question for the legislature.

Conclusion

The DPS has failed to establish that the information contained in the Governor

Protective Detail officers’ travel vouchers is confidential under either a common-law right of privacy

or a constitutional right of privacy. We affirm the judgment of the district court.

__________________________________________

G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: May 29, 2009

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