ACCEPTED
03-15-00093-CV
6583005
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/20/2015 1:47:06 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00093-CV
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
8/20/2015 1:47:06 PM
AUSTIN, TEXAS
JEFFREY D. KYLE
Clerk
THE CITY OF HOUSTON, TEXAS
Appellant,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
Appellee.
On Appeal from the 250th District Court of Travis County, Texas
The Honorable Stephen Yelenosky, Presiding
BRIEF OF APPELLEE KEN PAXTON,
ATTORNEY GENERAL OF TEXAS
KEN PAXTON MATTHEW R. ENTSMINGER
Attorney General of Texas State Bar No. 24059723
Assistant Attorney General
CHARLES E. ROY Open Records Litigation
First Assistant Attorney General Administrative Law Division
Office of the Attorney General of Texas
JAMES E. DAVIS P.O. Box 12548, Capitol Station
Deputy Attorney General for Civil Austin, Texas 78711-2548
Litigation Telephone: (512) 475-4151
Facsimile: (512) 320-0167
DAVID A. TALBOT, JR. matthew.entsminger@texasattorneygeneral.gov
Chief, Administrative Law Division
ATTORNEYS FOR APPELLEE KEN PAXTON,
KIMBERLY L. FUCHS ATTORNEY GENERAL OF TEXAS
Chief, Open Records Litigation
ORAL ARGUMENT NOT REQUESTED August 20, 2015
REFERENCE TO THE PARTIES
Appellant The City of Houston, Texas, will be referred to as “the City.”
Appellee, Ken Paxton, Attorney General of Texas, will be referred to as “the
Attorney General.”
REFERENCES TO THE RECORD
Clerk’s record will be referenced as: C.R. [Page]
Appendix will be referenced as: App. [Letter]
ii
TABLE OF CONTENTS
Reference to the Parties............................................................................................. ii
References to the Record .......................................................................................... ii
Table of Contents ..................................................................................................... iii
Index of Authorities ................................................................................................. iii
Statement Regarding Oral Argument ..................................................................... vii
Issues Presented ...................................................................................................... vii
Introduction ................................................................................................................1
Statement of Facts ......................................................................................................2
Procedural History .....................................................................................................5
Summary of the Argument.........................................................................................6
Standard of Review ....................................................................................................8
Argument....................................................................................................................8
I. The Information at Issue is not Excepted from Required Disclosure Under
Texas Rule of Evidence 503 because it does not Consist of Confidential
Attorney-Client Communications.................................................................... 8
A. Texas Rule of Evidence 503 enacts the attorney-client privilege ......... 8
1 The communication must have been intended to be—and must
remain—confidential ..................................................................9
2. An employee may act as a “representative of the client” for
purposes of Rule 503 when the confidential communication
occurs within the scope of his employment ..............................10
3. The privilege is construed narrowly and the burden of
demonstrating its applicability is carried by its proponent .......11
B. The City has neither met its burden under Rule 503 nor the PIA ....... 12
iii
1. The face of the documents demonstrates the administrative
statements were not intended to be kept confidential ...............12
2. The face of one document indicates the sworn administrative
statement was not offered within the affiant employee’s “course
of employment.”........................................................................14
3. Nothing in the record suggests the employees offered the sworn
statements for the purpose of facilitating the rendition of legal
services to the City ....................................................................16
II. The City may not Withhold the Requested Administrative Statements
Pursuant to the Attorney-Client Privilege and this Court’s Holding in
Harlandale Simply because the Statements were Attached to an Attorney-
Client Privileged Report ................................................................................ 18
A. The Court’s holding in Harlandale applies when an attorney-client
privileged report is requested in its entirety ........................................ 19
B. The instant case is distinguishable from Harlandale and other cases
cited by the City because the administrative statements at issue were
specifically requested and were never cloaked by privilege ............... 20
C. The expansive reading of Harlandale proposed by the City would
threaten public access to information about the official acts of public
employees ............................................................................................ 23
Conclusion and Prayer .............................................................................................24
Certificate of Compliance ........................................................................................26
Certificate of Service ...............................................................................................27
iv
INDEX OF AUTHORITIES
CASES
Better Gov’t Bureau v. McGraw (In re Allen),
106 F.3d 582 (4th Cir. W. Va. 1997) .......................................................................22
Garrity v. State of N.J.,
385 U.S. 493 (1967) .................................................................................................16
Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London,
327 S.W.3d 118 (Tex. 2010) ......................................................................................7
Harlandale Independent School District v. Cornyn,
25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied) .................................... 18-20
Huie v. DeShazo,
922 S.W.2d 920 (Tex. 1996) ................................................................................9, 11
In re E.I. DuPont de Nemours & Co.,
136 S.W.3d 218 (Tex. 2004) ............................................................................. 10, 15
In re USA Waste Mgmt. Res., L.L.C.,
387 S.W.3d 92 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding) .... 10, 15
In re XL Specialty Ins. Co.,
373 S.W.3d 46 (Tex. 2012) ........................................................................... 9, 12, 13
Jordan v. Ct. of Appeals for the Fourth Supreme Judicial Dist.,
701 S.W.2d 644 (Tex. 1985) ....................................................................................18
State ex rel. Curry v. Walker,
873 S.W.2d 379 (Tex. 1994) ....................................................................................21
Tex. Dep’t of Mental Health & Mental Retardation v. Davis,
775 S.W.2d 467 (Tex. App.—Austin 1989, no writ) ..............................................11
Tex. Dep’t Pub. Safety v. Abbott,
310 S.W.3d 670 (Tex. App.—Austin 2010, no pet.) .................................................7
Tex. State Bd. of Chiropractic Exam’rs v. Abbott,
391 S.W.3d 343 (Tex. App.—Austin 2013, no pet.) .................................. 11, 18, 23
v
Thomas v. Cornyn,
71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.) .......................................... 11, 24
Upjohn Co. v. United States,
449 U.S. 383 (1981) .................................................................................... 15, 16, 22
West v. Solito, 563 S.W.2d 240 (Tex. 1978) ........................................................9, 17
STATUTES
Tex. Gov't Code
Public Information Act
§ 552.001 ..................................................................................................................24
§ 552.001(a) .............................................................................................................21
§ 552.006 ..................................................................................................................24
§ 552.007(b) .............................................................................................................13
§ 552.301 ....................................................................................................................3
§ 552.324 ....................................................................................................................5
RULES
Tex. R. Evid.
503(a)(2)....................................................................................................... 11, 15-17
503(b) .........................................................................................................................9
511(a)(1)...................................................................................................................14
LEGISLATIVE HISTORY
Act of May 17, 2013, 83d Leg., R.S., ch. 461,
§ 1, 2013 Tex. Gen. Laws 1293 .................................................................................4
vi
STATEMENT REGARDING ORAL ARGUMENT
The Attorney General does not request oral argument. But the Attorney
General would like the opportunity to present oral argument if the Court grants
Appellant’s request for oral argument or otherwise determines that oral argument is
necessary to help clarify the issue before the Court.
ISSUES PRESENTED
1. Does Texas Rule of Evidence 503 make confidential as attorney-client
privileged the sworn administrative statement of a city employee that is
provided to a city investigator where the employee is the subject of the
misconduct investigation, is free to share the statement with his own
attorney, or is admonished that he is not required to make the statement as a
condition of his employment?
2. May a governmental body withhold a requested document consisting of
public information not otherwise excepted from required disclosure under
the Public Information Act simply because the non-privileged document was
later attached to an attorney-client privileged report?
vii
CASE NO. 03-15-00093-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
THE CITY OF HOUSTON, TEXAS,
Appellant,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
Appellee.
On Appeal from the 250th District Court of Travis County, Texas
The Honorable Stephen Yelenosky, Presiding
BRIEF OF APPELLEE KEN PAXTON,
ATTORNEY GENERAL OF TEXAS
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
INTRODUCTION
Texas courts have found that exceptions to mandatory disclosure under the
Texas Public Information Act (the PIA) are to be narrowly construed. Similarly,
Texas courts narrowly construe application of the attorney-client privilege to
include only those situations where a client seeks the rendition of legal services
from an attorney and circumstances indicate an intention that the communication
be made in confidence and remain confidential.
But here the City asks the Court to instead expansively construe the
attorney-client privilege to include sworn administrative statements provided to an
investigator from the City’s Office of the Inspector General (OIG) by City
employees being investigated for misconduct—despite the fact that the employees
were explicitly admonished they were free to discuss the communication and share
the sworn statement with their own legal counsel or were not required to provide
the statement as a condition of the employee’s employment. Barring such a
finding, the City alternatively argues these non-privileged statements are
nonetheless excepted from required public disclosure simply because the
statements were later attached to a privileged OIG report.
The City’s argument demands an expansive interpretation of the privilege
that is not supported by Texas law. Because the City has failed to demonstrate the
attorney-client privilege protects the requested administrative statements from
required public disclosure, the Attorney General asks the Court to affirm the
judgment of the trial court.
STATEMENT OF FACTS
This is an appeal from the final judgment in a lawsuit brought under the PIA,
as authorized by section 552.324 of the Government Code. The City received an
open records request for several categories of information relating to an OIG
internal investigation, including written statements made by “parties involved in
2
this matter.” C.R. 6–7. The requestor identified herself as legal counsel for one of
the City employees who were the subjects of the OIG investigation. Id. The City
declined to release the requested information and instead sought an open records
ruling from the Attorney General. C.R. 8–11; Tex. Gov’t Code § 552.301. In its
briefing, the City asserted the requested information pertained to a completed OIG
investigation and contained “communications to and from employees of the OIG in
their capacity as attorney representatives and various City employees in their
capacity as clients and client representatives.” C.R. 9. The City argued the
entirety of the requested records thus consisted of privileged attorney-client
communications protected under Texas Rule of Evidence 503. Id.
The City alternatively argued the requested information was excepted from
required disclosure pursuant to the law enforcement exception, section 552.108 of
the Government Code. C.R. 9–10. While acknowledging “Section 552.108, by its
terms, applies only to a law enforcement agency or a prosecutor[,]” the City argued
the information was nonetheless subject to the law enforcement exception because:
The OIG’s primary investigatory function extends into enforcement
by way of the provision of information related to potential violations
of local, state, or federal law to the municipal prosecutor, the Houston
Police Department, the Harris County District Attorney’s Office, or
other public law enforcement authorities as appropriate. As such, the
City believes that the OIG is a law enforcement agency and that its
records are subject to section 552.108.
3
C.R. 10 (emphasis added). The City concluded “OIG advises that the [requested
information] pertains to the investigation of a potential crime and that the release
of said information would interfere with the detection, investigation, or prosecution
of crime.” Id.
The Attorney General issued Open Records Letter Ruling OR2014-02684 in
response to the City’s request. C.R. 46–50. The Attorney General determined that
most of the requested information was excepted from disclosure pursuant to Texas
Rule of Evidence 503; however, the Attorney General identified portions of the
requested information as consisting of communications with non-privileged
parties. C.R. 48; see Def.’s Ex. C (information at issue).1 Because these non-
privileged statements were specifically requested and existed separate and apart
from the completed OIG report to which they were later attached, the Attorney
General determined they were not subject to the attorney-client privilege. Id.
Further, the Attorney General found the law enforcement exception did not apply
to this remaining information because the documents related only to a “completed
1
The portion of the requested information determined to be public information by the Attorney
General and identified by the City as being at issue in this lawsuit was labeled “Information at
Issue” and was presented to the trial court for in camera inspection as Defendant’s Exhibit C.
C.R. 55. This exhibit was preserved by the trial court clerk and was forwarded to the Court for
review in relation to this appeal but was not made part of the Clerk’s record, so as to avoid any
disclosure of the information that would moot the controversy. This practice of submitting
information at issue in a PIA lawsuit for review by the trial court and any reviewing courts of
appeal is codified at section 552.3221 of the Government Code. See Act of May 17, 2013, 83d
Leg., R.S., ch. 461, § 1, 2013 Tex. Gen. Laws 1293 (codified at Tex. Gov’t Code § 552.3221). In
this brief, the Attorney General will refer to the information at issue as “Def.’s Ex. C,” followed
by the relevant page number(s).
4
investigation that [was] purely administrative in nature” and the City “[did] not
provide any arguments explaining how the internal investigation resulted in a
criminal investigation or prosecution.” C.R. 49. Accordingly, the Attorney General
directed the City to release the non-privileged communications to the requestor.
Id.
Procedural History
The City filed timely suit against the Attorney General in Travis County
district court challenging letter ruling OR2014-02684, to the extent the ruling
found the requested information was not subject to Texas Rule of Evidence 503.
C.R. 3–5; Tex. Gov’t Code § 552.324. The City did not challenge the Attorney
General’s determination under section 552.108 of the Government Code. C.R. 5.
The parties filed cross-motions for summary judgment. The City argued the
information at issue consisted of attorney-client privileged information protected
under Rule 503. C.R. 56–79 (The City of Houston’s Cross-Motion for Summary
Judgment), 85–90 (The City of Houston’s Response to Defendant’s Cross-Motion
for Summary Judgment). The Attorney General argued the information at issue
was not privileged and should be released in accordance with the letter ruling.
C.R. 33–55 (Defendant’s Cross-Motion for Summary Judgment), 80–84
(Defendant’s Response to Plaintiff’s Cross-Motion for Summary Judgment).
5
After a hearing on the parties’ cross-motions, the trial court granted the
Attorney General’s motion and denied the City’s motion, ordering “the information
at issue is not privileged pursuant to Rule 503 of the Texas Rules of Evidence and
the City must disclose this information to the requestor.” C.R. 91–92. The City
then filed a motion for new trial. C.R. 93–98. The trial court denied the City’s
motion. C.R. 103–05. The City timely filed notice of appeal, and this proceeding
followed.2 C.R. 106–10.
SUMMARY OF THE ARGUMENT
The information at issue in this suit consists of the sworn administrative
statements of two City employees whose actions were under investigation by the
City’s Office of Inspector General. The face of the documents shows the
employees were admonished that they were free to disclose the administrative
statement to their own legal counsel. Additionally, one employee was admonished
that he was not required to make a statement as a condition of his employment with
the City. Thus, the statements were never intended to remain confidential and at
least in one instance the statement was not made as a condition of employment.
2
The Attorney General notes that it appears the City has dropped its challenge to a portion of
what was originally before the trial court as the “Information at Issue,” which the Attorney
General refers to in this brief as Def.’s Ex. C. That packet consists of twenty-eight pages, bates-
marked AG Jenkins(Brooks)00001–00028. According to the City’s brief, the City appeals the
trial court’s judgment only as to Jenkins(Brooks)00008–00014 and Jenkins(Brooks)00024–
00028. Appellant’s Br. at 4. The Attorney General assumes the City has released the remaining
information to the requestor.
6
Consequently, these statements are not privileged pursuant to Texas Rule of
Evidence 503. Moreover, these non-privileged statements, when individually
requested under the PIA, do not become privileged and excepted from required
disclosure simply by virtue of having been attached as exhibits to a privileged OIG
report. The requested administrative statements are subject to required public
disclosure and accordingly the judgment of the trial court should be affirmed.
STANDARD OF REVIEW
When both sides move for summary judgment, a reviewing court considers
both sides’ summary-judgment evidence, determines all questions presented, and
renders the judgment the trial court should have rendered. Gilbert Tex. Constr.,
L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010) (citing
Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415–16 (Tex. 2000)). A trial
court’s determination regarding whether information is public and subject to
required disclosure under the PIA is a question of law that is reviewed de novo.
Tex. Dep’t Pub. Safety v. Abbott, 310 S.W.3d 670, 673 (Tex. App.—Austin 2010,
no pet.) (citing City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.
2000)).
7
ARGUMENT
I. THE INFORMATION AT ISSUE IS NOT EXCEPTED FROM
REQUIRED DISCLOSURE UNDER TEXAS RULE OF EVIDENCE
503 BECAUSE IT DOES NOT CONSIST OF CONFIDENTIAL
ATTORNEY-CLIENT COMMUNICATIONS.
The City asserts the two sworn administrative statements at issue are
privileged attorney-client communications subject to Texas Rule of Evidence 503
because the employees who provided the statements were cooperating with the
OIG investigation pursuant to City policy and the communications were intended
to remain confidential. Appellant’s Br. at 18–21. But because the employees were
free to disclose the statement to their own legal counsel, because an employee was
admonished that the statement was not a requirement of his employment, and
because there is no evidence the employees believed they were helping to facilitate
the rendition of professional legal services to the City, neither employee was acting
as a “representative of the client” for purposes of Rule 503 and the City has failed
to meet its burden of demonstrating the information at issue is attorney-client
privileged or otherwise excepted from required public disclosure under the PIA.
The trial court’s ruling should be affirmed.
A. Texas Rule of Evidence 503 enacts the attorney-client privilege.
The attorney-client privilege excepts from disclosure certain
communications between client and attorney, when the communications are
intended to and remain confidential and are made for the purpose of facilitating the
8
rendition of professional legal services to the client. Tex. R. Evid. 503(b); see
Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex. 1996). The intention of the privilege
is to allow “unrestrained communication and contact between an attorney and
client in all matters in which the attorney’s professional advice or services are
sought, without fear that these confidential communications will be disclosed by
the attorney, voluntarily or involuntarily, in any legal proceeding.” West v. Solito,
563 S.W.2d 240, 245 (Tex. 1978).
1. The communication must have been intended to be—and
must remain—confidential.
A communication is “confidential” for purposes of Rule 503 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. Tex. R.
Evid. 503(a)(5). Generally speaking, communication with outside counsel or any
other third party will waive the privilege. See In re XL Specialty Ins. Co., 373
S.W.3d 46, 49–50 (Tex. 2012). The only exceptions for communication with
outside counsel exist where the proponent of the privilege can demonstrate the
separately-represented parties share either a joint defense in litigation or, outside of
litigation, otherwise share a “mutual” or “common interest” with nonlitigating
persons. Id.
9
2. An employee may act as a “representative of the client” for
purposes of Rule 503 when the confidential communication
occurs within the scope of his employment.
The attorney-client privilege extends to a “representative of the client” only
if the representative is “a person having authority to obtain professional legal
services, or to act on advice thereby rendered, on behalf of the client,” or is “any
other person who, for the purpose of effectuating legal representation for the client,
makes or receives a confidential communication while acting in the scope of
employment for the client.” Tex. R. Evid. 503(a)(2). Texas courts have
interpreted this rule as adopting the common-law “subject matter test.” In re E.I.
DuPont de Nemours & Co., 136 S.W.3d 218, 225 n.3 (Tex. 2004). The subject
matter test expands the reach of the privilege beyond executives or supervisors to
other employees in the corporation and is met where (1) the employee makes the
communication at the direction of his superior and (2) the subject matter upon
which the attorney’s advice is sought and dealt with in the communication is the
performance of the employee’s duties.” Id. (citing Nat’l Tank Co. v. Brotherton,
851 S.W.2d 193, 198 (Tex. 1993)). Courts have found a communication to be
made “while acting in the scope of employment” when it occurs at the direction of
management and where the employee was required to cooperate as a condition of
employment. Tex. R. Evid. 503(a)(2); see, e.g., In re USA Waste Mgmt. Res.,
L.L.C., 387 S.W.3d 92, 97 (Tex. App.—Houston [14th Dist.] 2012, orig.
10
proceeding) (“[Party seeking to defeat privilege] failed to dispute that Waste
Management requires all employees, as a condition of their employment, to fully
cooperate in any investigation of a violation of their anti-violence policy.”).
3. The privilege is construed narrowly and the burden of
demonstrating its applicability is carried by its proponent.
The party resisting discovery bears the burden of demonstrating the
applicability of any claimed privilege. Huie, 922 S.W.2d at 926 (citing State v.
Lowry, 802 S.W.2d 669, 671 (Tex. 1991)). Because it tends to prevent full
disclosure of the truth, this Court has narrowly construed application of the
attorney-client privilege. Tex. Dep’t of Mental Health & Mental Retardation v.
Davis, 775 S.W.2d 467, 473 (Tex. App.—Austin 1989, no writ).
Similarly, a governmental body seeking to withhold information under the
PIA bears the burden of establishing that an exception to public disclosure applies.
Thomas v. Cornyn, 71 S.W.3d 473, 480–81 (Tex. App.—Austin 2002, no pet.).
Moreover, exceptions to the disclosure requirement of the PIA are “narrowly
construed.” Tex. State Bd. of Chiropractic Exam’rs v. Abbott, 391 S.W.3d 343,
347 (Tex. App.—Austin 2013, no pet.) (citing Arlington Indep. Sch. Dist. v. Tex.
Attorney Gen., 37 S.W.3d 152, 157 (Tex. App.—Austin 2001, no pet.)). As
explained below, the City has failed to demonstrate the information at issue
consists of confidential communications, made while the employees were acting in
11
the scope of their employment and for the purpose of facilitating the rendition of
legal services to the City. Consequently, the City has failed to meet its burden
under Rule 503 and as required by the PIA.
B. The City has neither met its burden under Rule 503 nor the PIA.
The record before the Court demonstrates the administrative statements at
issue were never intended to be kept confidential, in at least one instance was not
made in the scope of the affiant’s employment with the City, and were not offered
for the purpose of facilitating the rendition of legal services to the City.
1. The face of the documents demonstrates the administrative
statements were not intended to be kept confidential.
As explained above, only confidential communications between attorney and
client are protected under the privilege. Tex. R. Evid. 503(a)(5); In re XL Specialty
Ins. Co., 373 S.W.3d at 49–50. The City claims it “took steps to ensure and
maintain the confidentiality of the communications.” Appellant’s Br. at 19. But
this assertion is contradicted by the face of the documents in question. Each
administrative statement contains a number of admonishments, each which the
affiant must individually assent to by placing his initials next to the statement in
question. Def.’s Ex. C at 8, 24. The fourth admonishment clearly states that the
affiant is free to discuss and share the written statement with his own legal
representative:
12
All parties are hereby notified that any dissemination, distribution,
copying, or use of or reliance upon the information contained in this
document by or to anyone other than the recipient and/or his/her
attorney in the above referenced OIG case is unauthorized and
strictly prohibited by law and city policy. You are hereby ordered by
the Inspector General, as authorized by Executive Order 1-39 Section
5.7, not to discuss the investigation with anyone except your legal
representative, and you are further ordered not to distribute, review
and/or share administrative statements with anyone other than your
attorney.
Id. (emphasis added).
Thus, at the time the statement is made the City clearly communicates to the
affiant that—while sharing with coworkers or others is unauthorized by City
policy—the affiant may discuss and distribute the sworn statement to his own
attorney, a non-privileged individual. Further, the City has failed to demonstrate or
even allege that any exception to the requirement of strict confidentiality under the
Rule is applicable here, such as a joint defense in litigation or a shared mutual
interest with the target individuals or their legal counsel. See In re XL Specialty
Ins. Co., 373 S.W.3d at 49–50. While the City acknowledges the text of the
admonishment, it makes no effort to explain how the sharing of the administrative
statement with the affiant’s own counsel would maintain the purportedly intended
confidentiality of the statement. Appellant’s Br. at 19.
The cloak of the privilege cannot be selectively applied. Tex. Gov’t Code
§ 552.007(b) (public information voluntarily made available must be made
13
available to any person); Tex. R. Evid. 511(a)(1) (consent to disclosure waives
privilege). These statements were never “intended” to be confidential. Quite the
opposite; the admonishments on the face of the documents, and to which the City
required the employees assent, demonstrate the City contemplated the
communication would be shared with non-privileged parties. Thus, no confidential
relationship was established and the privilege never attached. Tex. R. Evid.
503(a)(5). The City has failed to meet its burden on this point.
2. The face of one document indicates the sworn
administrative statement was not offered within the affiant
employee’s “course of employment.”
Not only has the City failed to demonstrate the statements were intended to
be kept confidential, in one case it has additionally failed to establish the statement
was made by the affiant employee “while acting in the scope of employment for”
the City. See Tex. R. Evid. 503(a)(2). Again, the City’s argument is contradicted
by the text of the sworn admonishment, which states the employee is under no
requirement of his employment to make the statement to the OIG investigator:
I, [Affiant], furnished the following statement free and voluntarily to
[Investigator] of the Office of Inspector General. No threats,
monetary benefits, or promises of any kind were used to induce this
statement. I understand that I was NOT required to furnish this
statement as a condition of my employment with the city of Houston.
Def.’s Ex. C at 8 (emphasis in original).
14
Consequently, in at least one instance the affiant employee was explicitly
not acting “in the scope of employment” for the City, as required by the Rule. See
Tex. Rule Evid. 503(a)(2). Rather, this employee was voluntarily offering a sworn
statement—in his position as a suspect of misconduct in an OIG investigation—to
an OIG investigator. Thus the situation in the instant case is distinguishable from
the cases cited by the City, where employees were instructed by management to
speak with counsel as a requirement of their employment. See In re USA Waste
Mgmt. Res., 387 S.W.3d at 97 (employees required to cooperate with investigation
as condition of employment); In re E.I. DuPont de Nemours & Co., 136 S.W.3d at
225 n.3 (statement must be directed by superior); Upjohn Co. v. United States, 449
U.S. 383, 394 (1981) (privileged statements made “at the direction of corporate
superiors”).
The City merely dismisses as “boilerplate” the admonishment that the
employee “was NOT required to furnish this statement as a condition of [his]
employment with the city of Houston.” Appellant’s Br. at 20. This explanation
neither aids the City in meeting its burden under the Rule, nor does it explain why
the City required the employee’s assent to this provision if the City did not believe
it to be accurate.3 If the purpose of the attorney-client privilege is to be served, the
3
The more likely reason these statements were not compelled in the course of employment is that
these employees were the subjects of the investigation and—as the City notes—it views the OIG
as a “law enforcement agency” with a duty to turn over evidence of illegal behavior to the
15
attorney and client must be certain whether a communication is protected.4 See
Upjohn, 449 U.S. at 393. Consequently, the record shows this statement was
neither intended to be kept confidential nor made by an employee acting as
representative for the City.5 The trial court’s ruling should be affirmed.
3. Nothing in the record suggests the employees offered the
sworn statements for the purpose of facilitating the
rendition of legal services to the City.
Finally, and in addition to its failure to demonstrate these administrative
statements were intended to be confidential, the City has not demonstrated the
statements were offered with an understanding they were being made for the
purpose of effectuating legal representation for the City. See Tex. R. Evid.
503(a)(2) (statement must be given “for the purposes of effectuating legal
representation for client”); see also Upjohn, 449 U.S. at 394 (“The
communications concerned matters within the scope of the employees’ corporate
duties, and the employees themselves were sufficiently aware that they were being
appropriate authorities. See C.R. 10, 15. Mandating potentially-incriminating statements be
offered without promise of immunity would likely run afoul of the Fourteenth Amendment to the
U.S. Constitution. See Garrity v. State of N.J., 385 U.S. 493, 500 (1967) (government employer
cannot threaten removal from employment for failure to offer incriminating statement).
4
The Attorney General has accepted the applicability of the admonishments on the face of the
document as uncontroverted. But if the City now asserts one of the admonishments to which it
required assent was superfluous boilerplate, it brings into question the effectiveness of the
remaining admonishments it wishes to use to support its arguments. See Appellant’s Br. at 19.
5
Although the second administrative statement at issue does not contain this part of the
admonishment, it nonetheless clearly states the employee is free to share the statement with his
own counsel. Def.’s Ex. C at 24.
16
questioned in order that the corporation could obtain legal advice.”). Here the
situation is far more analogous to a suspect offering a voluntary statement to an
investigator.
As noted above, the City views the OIG as a sort of “law enforcement”
entity. C.R. 10. The OIG has the discretion to turn over findings to the City police
department or the Harris County District Attorney—a fact surely not lost upon an
employee suspected of misconduct.6 See C.R. 15. The admonishment page each
employee affiant must sign identifies the attorney as an “OIG investigator,” not as
legal counsel for the City. Def.’s Ex. C at 8. And far from offering the employee a
feeling that a statement can be made “without fear” the communication will be
disclosed by the investigator “in any legal proceeding,”7 the employee is threatened
with criminal perjury for failing to testify truthfully. Id. In short, the record is
bereft of any proof that the employees whose actions were being investigated by
the OIG had any reason to believe they were offering—as a condition of
employment—a confidential, privileged statement to an attorney for the purposes
of effectuating legal representation for the City.8
6
Indeed, the threat of OIG investigators turning their findings over to City police department or
local district attorney makes this claim even more nonsensical. At that point the City would be
insisting it maintained statements privileged amongst both criminal investigators on one hand
and the criminal suspects’ attorneys on the other.
7
West v. Solito, 563 S.W.2d at 245.
8
Furthermore, the executive order establishing the OIG—as well as the City’s own description
of the OIG as a “law enforcement” entity—raises a question as to whether the OIG conducts
17
“The burden of proof to establish the existence of a privilege rests on the one
asserting it.” Jordan v. Ct. of Appeals for the Fourth Supreme Judicial Dist., 701
S.W.2d 644, 648–49 (Tex. 1985). Exceptions to the disclosure requirement of the
PIA are to be narrowly construed. Tex. State Bd. of Chiropractic Exam’rs, 391
S.W.3d at 347. The City has failed to demonstrate the sworn administrative
statements in question are protected by the attorney-client privilege. The Court
should reject the City’s arguments and affirm the judgment of the trial court.
II. THE CITY MAY NOT WITHHOLD THE REQUESTED
ADMINISTRATIVE STATEMENTS PURSUANT TO THE
ATTORNEY-CLIENT PRIVILEGE AND THIS COURT’S HOLDING
IN HARLANDALE SIMPLY BECAUSE THE STATEMENTS WERE
ATTACHED TO AN ATTORNEY-CLIENT PRIVILEGED REPORT.
Barring a finding by the Court that the administrative statements at issue are
independently protected under Rule 503, the City alternatively insists such
statements would nonetheless be protected pursuant to this Court’s decision in
Harlandale Independent School District v. Cornyn, 25 S.W.3d 328 (Tex. App.—
Austin 2000, pet. denied). Appellant’s Br. at 13–14. But the City’s reading of
Harlandale would allow for a governmental body to withhold nearly any record
investigations primarily for the purpose of rendering legal advice to the City versus simply acting
as an independent investigator that is not compelled to maintain privity with the City and in fact
is free to turn over its findings to outside entities such as the Harris County District Attorney, at
its own discretion. The executive order seems to indicate it is in fact the OIG that determines
what information may be divulged, and to whom, rather than the City as “client” making such
decisions. C.R. 14–18.
18
otherwise subject to required public disclosure under the PIA simply by attaching
the record to a privileged attorney report.
A. The Court’s holding in Harlandale applies when an attorney-
client privileged report is requested in its entirety.
Prior to Harlandale, the Attorney General found that factual information
compiled by an attorney acting as an investigator for a governmental body was not
protected as attorney-client privileged for purposes of the PIA. Harlandale, 25
S.W.3d at 330. Accordingly, when a governmental body received a request for a
final investigative report compiled by an attorney acting as investigator on behalf
of a governmental body, the Attorney General found the government may withhold
only those portions of the requested report consisting of legal advice or opinions.
Id. In Harlandale, the plaintiff school district hired an outside attorney to
investigate a grievance filed by an employee arising out of a sexual harassment
investigation. Id. at 329–30. In hiring the outside attorney, the district sought an
analysis of the “legal liabilities and consequences facing the School District and
the Board of Trustees.” Id. at 330. The district subsequently received a PIA
request for the “written report and the exhibits attached to the report.” Id. The
trial court agreed with the Attorney General that only those portions of the report
consisting of legal advice and opinion were excepted from required public
disclosure. Id. at 330–31. The district appealed from the Attorney General’s letter
19
ruling and the judgment of the trial court, arguing the entire report was protected
by privilege. Id. at 331.
This Court reversed the trial court’s judgment, concluding “Harlandale
proved as a matter of law that an exception to disclosure applies to [the attorney’s]
entire report.” Id. at 333. The Court reasoned that because the school district
retained counsel to “conduct an investigation in her capacity as an attorney” and
because she was hired to deliver a “legal opinion based upon an investigation of
relevant facts,” the attorney-client privilege excepted the entire report from
disclosure and “not just the portions designated as her legal analysis and
recommendations.” Id. at 333–34.
B. The instant case is distinguishable from Harlandale and other
cases cited by the City because the administrative statements at
issue were specifically requested and were never cloaked by
privilege.
The Attorney General agrees the entirety of the report would be excepted
from disclosure if requested under the PIA, in accordance with Harlandale. But
here, in addition to seeking the underlying investigative report, the requestor
specifically and individually requested the statements of the individuals who were
the subjects of the OIG’s investigation. C.R. 6. Because these statements were
gathered during the course of the OIG investigation prior to the creation of the OIG
final investigative report—and were specifically and individually requested—the
20
Attorney General asserts the City must release the administrative statements
because they are not independently excepted from required public disclosure under
the PIA.9
The City claims the Attorney General is attempting to utilize the
“piecemeal” approach rejected by Harlandale. Appellant’s Br. at 13–14. But the
instant case is distinguishable from the facts of Harlandale because here the
statements were specifically and individually requested, and the statements exist
separate and apart from the OIG’s final report to which they were later attached, as
opposed to Harlandale where only the report and unspecified exhibits were
requested. C.R. 6; 25 S.W.3d at 330. And as demonstrated above, these records
document non-privileged statements, not otherwise excepted from disclosure under
the PIA. The request happened to seek the statements after they were attached to
the report. The timing of a request cannot be determinative of the confidentiality
of information about the affairs of government. Tex. Gov’t Code § 552.001(a)
(declaring the policy of Texas that “each person is entitled, unless otherwise
expressly provided by law, at all times to complete information about the affairs of
government”).
9
This treatment is similar to how the Supreme Court has approached a request for a prosecutor’s
litigation file. While particular items contained within the file, such as a completed police report,
may be subject to required disclosure under the PIA when specifically requested, a request for
the entire litigation file will generally be viewed as “too broad” because disclosing the
organization of the entire file necessarily reveals the attorney’s thought processes. See State ex
rel. Curry v. Walker, 873 S.W.2d 379, 380 (Tex. 1994).
21
Moreover, the gathering of the communications at issue in the instant case is
distinguishable from the circumstances of the cases cited by the Court in
Harlandale. In re Allen concerned privileged communications and interviews
collected by an attorney-investigator during the course of an internal investigation.
Better Gov’t Bureau v. McGraw (In re Allen), 106 F.3d 582, 605 (4th Cir. W. Va.
1997) (“Therefore, the attorney-client privilege protects all communications
between Allen and the attorneys in the Attorney General’s Office that occurred in
connection with her investigation.”). Similarly, in Upjohn—the case upon which
the decision in In re Allen was based—the attorney-investigator’s communications
with company employees were found to be privileged because the employees were
acting in the scope of their employment, were aware they were aiding in the
rendition of legal services to their employer, and the company expressed an
intention for the communications to remain confidential. 449 U.S. at 394. But as
argued above, the communications at issue in this suit were never cloaked by
privilege because the suspect-employees being questioned were told they could
share the statements with non-privileged parties and because they were not acting
as a “representative of the client” or otherwise required to make the statement in
the course of employment with the City. The Attorney General urges the Court to
reject the City’s expansion of Harlandale.
22
C. The expansive reading of Harlandale proposed by the City would
threaten public access to information about the official acts of
public employees.
The perils of adopting the City’s expansive reading of the Court’s decision
are obvious. If Harlandale intended to protect as attorney-client privileged any
singular government record—specifically sought by a PIA requestor and not
independently subject to an explicit exception from disclosure—by virtue of the
fact that the record was appended as an attachment to a final investigation into
alleged government employee misconduct, then a massive loophole would exist by
which government could shut down public access to any factual information it so
desired simply by seeking legal advice from counsel and including such
information as an attachment to the attorney’s investigative report. The threat to
the public’s access to government information becomes even greater in situations
such as here, where one arm of the City is ostensibly providing “legal advice” to
another while also conducting an investigation into alleged government employee
malfeasance that may involve criminal violations of law.
As noted above, exceptions to the disclosure requirement of the PIA are to
be narrowly construed. Tex. State Bd. of Chiropractic Exam’rs v. Abbott, 391
S.W.3d at 347. And the City bears the burden of establishing an exception to
public disclosure applies to the requested information. See Thomas v. Cornyn, 71
S.W.3d at 480–81. Moreover, investigations into the acts of public officials go to
23
the primary purpose of liberal disclosure under the PIA. “[E]ach person is entitled
. . . to complete information about the affairs of government and the official acts of
public officials and employees . . . . The people insist on remaining informed so
that they may retain control over the instrument they have created.” Tex. Gov’t
Code § 552.001. While Harlandale does not require the City to identify for public
release those discrete portions of the final investigative report that are purely
factual in nature when the entire report is sought under the PIA, it does not follow
that any independently-requested item of factual and not otherwise privileged
information is excepted from required public disclosure simply because that item
was later appended to a privileged report.10 The Attorney General urges the Court
to reject the City’s argument and affirm the judgment of the trial court.
CONCLUSION AND PRAYER
The Attorney General respectfully asks the Court to affirm the judgment of
the trial court.
10
The City insists the administrative statements at issue should be protected by privilege because
the requestor can seek out the information from the affiants directly. This assurance is directly
contradicted by the City’s own summary judgment evidence below. C.R. 77 (City employee who
shares statement or discusses investigation commits misconduct). Moreover, the PIA does not
allow for the withholding of public records simply by virtue of the fact that the information
contained within such records might also be obtained through hiring legal counsel and procuring
a subpoena. Tex. Gov’t Code § 552.006 (PIA does not authorize withholding of public
information or limit availability of public information to public except as expressly provided).
24
Respectfully Submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
KIMBERLY L. FUCHS
Chief, Open Records Litigation
/s/ Matthew R. Entsminger
MATTHEW R. ENTSMINGER
State Bar No. 24059723
Assistant Attorney General
Open Records Litigation
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4151
Facsimile: (512) 320-0167
matthew.entsminger@texasattorneygeneral.gov
ATTORNEYS FOR APPELLEE KEN PAXTON,
ATTORNEY GENERAL OF TEXAS
25
CERTIFICATE OF COMPLIANCE
I certify that the Brief of Appellee Ken Paxton, Attorney General of Texas,
submitted complies with Rule 9 of the Texas Rules of Appellate Procedure and the
word count of this document is 5,048. The word processing software used to
prepare this filing and calculate the word count of the document is Microsoft Word
2013.
Date: August 20, 2015
/s/ Matthew R. Entsminger
MATTHEW R. ENTSMINGER
Attorney for Appellee
26
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of
Appellee Ken Paxton, Attorney General of Texas, has been served on August 20,
2015, on the following counsel-of-record via e-service and e-mail:
Mary E. (“Mary Beth”) Stevenson
State Bar No. 24072366
Assistant City Attorney
City of Houston Legal Department
900 Bagby, 4th Floor
Houston, Texas 77002
Telephone: (832) 393-6491
Facsimile: (832) 393-6259
marybeth.stevenson@houstontx.gov
ATTORNEY FOR APPELLANT
/s/ Matthew R. Entsminger
MATTHEW R. ENTSMINGER
Attorney for Appellee
27
the City of Houston, Texas v. Ken Paxton, Attorney General of Texas
Combined Opinion