ACCEPTED
03-15-00093-CV
6701214
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/28/2015 1:25:02 PM
JEFFREY D. KYLE
CLERK
FILED IN
3rd COURT OF APPEALS
No. 03-15-00093-CV AUSTIN, TEXAS
_______________________________________________
8/28/2015 1:25:02 PM
JEFFREY D. KYLE
In the Court of Appeals for the Clerk
Third District of Texas at Austin
_______________________________________________
CITY OF HOUSTON,
Appellant
V.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
Appellee
_______________________________________________
On Appeal from the 250th Judicial District Court
Travis County, Texas
Trial Court Case No. D-1-GV-14-000227
______________________________________________________________
Appellant’s Reply Brief
______________________________________________________________
Donna L. Edmundson Mary E. (“Mary Beth”) Stevenson
City Attorney Assistant City Attorney
SBN: 24072366
Judith L. Ramsey CITY OF HOUSTON LEGAL
Chief, General Litigation Section DEPARTMENT
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
Table of Contents
Page
Index of Authorities .................................................................................... iii
Summary of Argument in Reply ................................................................... 1
Argument and Authorities ............................................................................ 2
I. The client is the City, and the City may assert the attorney-client
privilege for statements made by its employees to City lawyers
taken in the course of an internal investigation and made part of its
investigative report. ............................................................................. 2
II. The Attorney General concedes that the entire investigative report
is excepted from disclosure, and nonetheless still demands that
exact copies of a portion of that report be disclosed. ............................. 3
III. There is no merit to the Attorney General’s contention that
applying Harlandale to the witness statements in this case would
enable a governmental body to circumvent the PIA. ............................. 5
Conclusion and Prayer ................................................................................. 6
Certificate of Compliance ............................................................................. 7
Certificate of Service .................................................................................... 8
ii
Index of Authorities
Page(s)
Cases
Harlandale Indep. Sch. Dist. v. Cornyn,
25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied) ......................passim
In re USA Waste Mgmt. Res., L.L.C.,
387 S.W.3d 92 (Tex App.—Houston [14th Dist.] 2012, orig.
proceeding) .......................................................................................... 2-3
Upjohn Co. v. United States,
449 U.S. 383, 101 S. Ct. 677 (1981) ............................................... 2, 4, 5, 6
Other Authorities
Texas Disciplinary Rule of Professional Conduct 1.12 ................................... 4
iii
Summary of Argument in Reply
The City does not ask this Court to construe the attorney client privilege
expansively but instead to apply it consistently with its own precedent. While
the Attorney General acknowledges that the witness statements were part of
the City’s investigative report, and that, as attached to the report, those
statements are protected from disclosure under Harlandale Independent School
District v. Cornyn, 25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied), the
Attorney General then argues that any other copies of those statements must
be disclosed. This makes no sense. If the investigative report is privileged, so
are its component parts, according to Harlandale.
Second, there is no merit to the Attorney General’s argument, contrary
to this Court’s holding in Harlandale, that a government body could circumvent
the PIA by merely attaching unrelated documents to an investigative report
and thereby shield those documents from disclosure. No party argues that
unrelated documents appended to an investigative report should be protected.
That argument loses force where, as here, the documents indisputably relate to
the City’s internal investigation. The Attorney General’s parade of horribles is
based on a straw man argument, not on the facts of this case.
The information at issue here—witness statements from interviews
conducted in the course of the internal investigation to which the investigative
report directly pertains—were properly attached to and incorporated into the
investigative report compiled by City attorneys to render legal advice to the
City; those statements are therefore protected by the attorney-client privilege.
Argument and Authorities
I. The client is the City, and the City may assert the attorney-client
privilege for statements made by its employees to City lawyers taken
in the course of an internal investigation and made part of its
investigative report.
The client is the City, and the City’s attorneys in the OIG are lawyers for
the City. CR.14-18, 19. The internal investigation in this case was conducted at
the behest of the City, and City policy dictates that City employees are
expected to cooperate with any OIG investigation. CR.16 (Section 5.7.3).
Like the attorney in Harlandale, the City’s lawyers at OIG compiled a
report after conducting interviews with several employees, and the
“Information at Issue” in this case was attached to and used in that report. 25
S.W.3d at 330; CR.22, IAI at AG Jenkins(Brooks)00008-14, 00024-28. Like
the in-house attorneys in Upjohn and Waste Management, the information
gleaned from the internal investigation here enabled OIG attorneys Sandra W.
Robinson and Inspector General Robin Curtis to render legal advice regarding
personnel issues and departmental guidance. CR.14-16, 19; see Upjohn Co. v.
United States, 449 U.S. 383, 394, 101 S. Ct. 677 (1981); In re USA Waste Mgmt.
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Res., L.L.C., 387 S.W.3d 92, 97-98 (Tex App.—Houston [14th Dist.] 2012,
orig. proceeding).
II. The Attorney General concedes that the entire investigative report is
excepted from disclosure, and nonetheless still demands that exact
copies of a portion of that report be disclosed.
In its Opinion Letter, the Attorney General agreed with the City
concerning most of the information that the City sought to withhold. CR.27
(“[W]e find that you have established most of the submitted information is
protected by attorney-client privilege.” (citing Harlandale, 25 S.W.3d 328)).
Indeed, the Attorney General states on appeal that he “agrees the entirety of
the report would be excepted from disclosure if requested under the PIA, in
accordance with Harlandale.” Brief at 20. He then goes on to explain that,
because the Requestor sought the entire report and requested the statements of
witnesses, her request is different from the request in Harlandale. Brief at 20.
The Attorney General attempts to create a distinction where none exists.
If the entire report is not subject to disclosure, as the Attorney General
recognizes, then neither are copies of the report’s component parts. See
Harlandale, 25 S.W.3d at 335 (When an attorney conducts an investigation in
her capacity as an attorney for the purpose of providing legal services and
advice to a client, an attorney’s entire investigative report comes under the
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attorney-client privilege); accord Upjohn, 449 U.S. at 395 (interviews and
questionnaires circulated by general counsel to employees were protected by
privilege). In Harlandale, this Court has already rejected the Attorney General’s
piecemeal approach to an investigative report. 25 S.W.3d at 335.
And, contrary to the Attorney General’s contentions, Harlandale did not
separately consider whether each and every exhibit was eligible for being
protected by the attorney-client privilege; the entire report, including its
component parts, were found to be protected from disclosure as privileged
because they were part of the investigative report. Id.
The report—with its component parts—was confidential attorney-client
communication from City lawyers to the City. See, e.g., Texas Disciplinary
Rule of Professional Conduct 1.12, cmt. 3 (providing that interviews between a
lawyer and an employee made in the course of an internal investigation are
confidential and may not be disclosed to other employees unless permitted by
the organization); IAI at AG Jenkins(Brooks)00008, 00024 (indicating the
confidential nature of the communication). There is no basis for the Attorney
General to find that copies of component parts of the report should be subject
to disclosure while also conceding that the entire investigative file is protected
from disclosure.
4
III. There is no merit to the Attorney General’s contention that applying
Harlandale to the witness statements in this case would enable a
governmental body to circumvent the PIA.
The Attorney General raises the specter that a governmental body may
circumvent the PIA by attaching any documents to an investigative report.
Brief at 23. Yet no one contends that the statements at issue were not an
integral part of, and directly related to, the internal investigation or that they
were improperly attached to the investigative report. The Attorney General’s
argument is based on speculation and not on the facts of this case.
Additionally, the Attorney General does not contest that the very
information the Requestor seeks is available to the Requestor through doing
her own legal and investigative work by interviewing the witnesses herself. See
Harlandale, 25 S.W.3d at 335 (stating that “[i]n weighing these competing
concerns [between the PIA and attorney-client privilege], we need not
surrender the fundamental protections afforded by the privilege to uphold the
interests of the Act” and holding in favor of the privilege because requestor
could obtain information from the same sources) (emphasis added); accord
Upjohn, 449 U.S. at 396 (“considerations of convenience do not overcome the
policies served by the attorney-client privilege”). Indeed, Jenkins’ letter request
indicates that she was already aware of the identities of some, if not all, of the
5
witnesses who could supply her with the factual information about the alleged
wrongdoing in the affected City department. CR.12.
In sum, the interviewees whose statements are at issue gave those
statements in cooperation with the OIG pursuant to City policy and at the
City’s behest. IAI at AG Jenkins(Brooks)00008-14, 00024-28; CR.14-16. The
information is confidential attorney-client information where, as here, it is
1) an integral part of an internal City investigation, 2) conducted by attorneys
on behalf of their client (here, the City), 3) for the express purpose of rendering
legal advice to the client based on the results of the investigation. This is core
attorney conduct and core communication for which a client rightly expects
confidentiality. See Harlandale, 25 S.W.3d at 334-35; Upjohn, 449 U.S. at 394.
Conclusion and Prayer
For the foregoing reasons, the City respectfully asks the Court to:
1) reverse the judgment of the trial court; 2) render judgment for the City that
the remaining “information at issue,” IAI at AG Jenkins(Brooks)00008-14,
00024-28, is protected from disclosure by the attorney-client privilege; 3) grant
the City its costs and expenses; and 4) grant the City any other relief to which
it is entitled.
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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
CITY OF HOUSTON LEGAL
DEPARTMENT
900 Bagby, 4th Floor
Houston, Texas 77002
832.393.6491 (Telephone)
832.393.6259 (Facsimile)
marybeth.stevenson@houstontx.gov
Attorneys for Appellant
Certificate of Compliance
I certify that the foregoing was prepared in Microsoft Word 2010
Version 14.0 in Calisto MT 14 point font; the word-count function shows that,
excluding those sections exempted under TRAP 9.4(i)(1), the brief contains
1,294 words.
/s/ Mary Beth Stevenson
Mary E. (Mary Beth) Stevenson
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Certificate of Service
I hereby certify that on this 28th day of August, 2015, a true and correct
copy of the foregoing has been served on counsel below via e-service.
Matthew R. Entsminger
Assistant Attorney General
Open Records Litigation
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
matthew.entsminger@texasattorneygeneral.gov
Attorney for Appellee
/s/ Mary Beth Stevenson
Mary E. (“Mary Beth”) Stevenson
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